In re D.T.

Filed 3/27/07 In re D.T. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

One-year-old D.T. and her alleged father David T. appeal from a juvenile court order entered in dependency proceedings denying Davids request to be declared D.s presumed father. They contend David signed a voluntary declaration of paternity under Family Code section 7570 et seq.,[1] which as a matter of law entitled David to be declared D.s presumed father. In addition, David contends that under section 7611, subdivision (d), he should have been declared a presumed father because he received D. into his home and held her out as his natural child. We conclude substantial evidence supports the courts finding that David did not meet his burden under section 7611, subdivision (d), but that David presented a prima facie case that he is D.s presumed father based on signing a declaration of paternity at the time of D.s birth. Nonetheless, the latter issue was not fully developed below and will require a remand for final determination.

Factual and Procedural Background

On March 20, 2006, the Contra Costa County Bureau of Children And Family Services (the bureau) filed a dependency petition under Welfare and Institutions Code section 300, subdivision (b) alleging that D. was at risk of serious physical harm or illness. The complaint alleges [t]he mother has a developmental disability which impairs her ability to provide adequate care and supervision to the child in that the child is diagnosed with failure to thrive.  The complaint names David as D.s alleged father and states, The alleged father failed to provide adequate care and supervision to the child in that the child is diagnosed with failure to thrive.  At the detention hearing the following day, the court found that placement of the child in the parents custody would not be in the best interests of the child.

At a hearing on March 27, 2004, David requested that his status be elevated to that of a presumed father. He argued that he signed a declaration of paternity, whatever document he was given at the hospital. His name was put on the birth certificate. He was present at the hospital. He held the child out as his own in the community. He attends doctor visits. He helped care for the child, and hes more than met the requirements for a . . . presumed father. The bureau opposed the request and argued that the mother has named a different person as a potential alleged father in this matter, too. . . . It is true that at some point in time [David] could raise himself to presumed status. But if there in fact is another person whos been named as an alleged father by the mother, I believe that person would have a right to make an appearance and have notice of any proceedings where somebody else is asking for presumed father status . . . . Certainly given the age of the child and the fact that there is a prior naming by mother, that we should have more information before theres a ruling. The court agreed and denied Davids request without prejudice. The court also ordered the bureau to inquire as to whether or not paternity has been previously declared by a superior court order or judgment.

At the jurisdictional hearing on July 7, David again filed a request to elevate his status to presumed father. In support of his motion, David submitted a memorandum of points and authorities arguing that he meets the requirements for presumed father status under section 7611 as is reflected by him being listed as father on the minors birth certificate, and his completion at the hospital of an application for a social security number for [D.]. He also noted, No other father has come forward with respect to this minor claiming paternity.

Mother testified at the hearing. She stated that David is and at the time that D. was conceived was her boyfriend.[2] She and David also have an older child together. Until recently, she rented a room in the home of Davids mother. David did not live with her. He rented a separate house with another woman. He spent nights at his house but came over every day while the mother was pregnant and after D. was born. He supported her while she was pregnant by helping with the cleaning and bringing her food. He also accompanied her to prenatal appointments. David was present at D.s birth and told the nursing staff that he was her father. Both David and the mother consented to placing his name on D.s birth certificate and David filled out forms to obtain a social security number for D. After D. was born, he participated in all aspects of baby care and accompanied her to medical appointments. While the mother on occasion brought D. to Davids apartment, she never left her there unsupervised or overnight.

David testified that he has two residences. He spends nights at his own apartment. He explained that another woman with whom he lives at the apartment is his roommate, although they have a five-year-old son together who also lives with them. The six-year-old daughter of David and D.s mother also sometimes lives in that home. David testified that he spends every day at his mothers house and also considers that to be his home. Although he does not pay his mother rent, he contributes to the household by doing work around the property. If the house needs to be painted on the outside, I do that . . . . I do the dishes, I sweep, I cut grass, feed the dogs and cats. He keeps half of his clothes and other belongings there, is registered to vote at that address and receives half of his mail there. David confirmed that he was present at D.s birth and spent the night in the hospital after she was born. When D. came home from the hospital to his mothers house, he spent the night there and cared for D. so the mother could rest. He bought clothes and baby supplies for D. Finally, he testified that even after learning that D. may not be his biological child he continued to consider himself her father; he told D.s mother that they still would be a family no matter what. I told her I was still going to love her, take care of her, and do as much as I could as her father.

At the conclusion of the hearing, the attorneys for David and D. argued that David met the requirements of a presumed father. The bureau and D.s mother disagreed. The court denied Davids request, finding that he has not shown that he received the child into his home. Certainly theres no dispute he did not receive the child into his home, that he lives with another woman in a home he refers to as his home. The only home he arguably received her in is the home he referred to as his mothers home. [] . . . It was his mothers home, not his home. He may help out there. His mother may let him come over whenever, but its not his home. He lives with one woman, and he goes over and visits D. at his mothers home.

At the conclusion of the hearing the bureau dismissed the allegations of the petition regarding David and struck the allegation in the petition that the mother had a developmental disability that impaired her ability to care for D. Mother submitted to jurisdiction based on the amended petition and the court found that there was a factual basis for the submission. The case was then transferred to Alameda County for disposition. David and D. filed timely notices of appeal from the courts order denying Davids request to be considered a presumed father.

Discussion

In dependency proceedings, [o]nly 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.) Presumed fatherhood, for purposes of dependency proceedings, denotes one who promptly comes forward and demonstrates a full commitment to his paternal responsibilitiesemotional, financial, and otherwise.  (Id. at pp. 801- 802.)

To be recognized as a presumed father, a man must fall within one of several categories enumerated in section 7611. Section 7611 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. ( 7611, subd. (d).) (In re Liam L. (2000) 84 Cal.App.4th 739, 745.) In 1994, the Legislature amended section 7611 to provide that a man is also presumed to be the natural father of a child if he meets the conditions provided in . . . Chapter 3 (commencing with Section 7570), which contains the provision for establishment of paternity by voluntary declaration. . . . Clearly, the Legislature intended that a man who had met the statutory conditions ( 7611), or rather established paternity by a voluntary declaration in compliance with all of the requirements of section 7570 et seq., was entitled to presumed father status. (In re Liam L., supra, at p. 746; see also In re Raphael P. (2002) 97 Cal.App.4th 716, 722-723 [Section 7570 et seq. provides for voluntary declarations of paternity which, when filed with the Department of Child Support Services, have the force and effect of a judgment of paternity].) David and D. contend that David is D.s presumed father under both section 7611, subdivision (d), and section 7570 et seq.

Presumed Father under Section 7611, subdivision (d)

Under section 7611, subdivision (d), a man who has neither legally married nor attempted to legally marry the mother of his child cannot become a presumed father unless he both  receives the child into his home and openly holds out the child as his natural child. [Citation.] . . . Therefore, to become a presumed father, a man who has neither married nor attempted to marry his childs biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.) In Adoption of Michael H., the court noted that it recently rejected an unwed fathers contention that a man can constructively receive a child into his home within the meaning of this statute. (Ibid.) The burden of proof rests with the man seeking presumed father status to show by a preponderance of the evidence that he received the child into his home and that he openly and publicly acknowledged paternity. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)

The trial court found that David did not meet his burden of proving that he received D. into his home. The court rejected Davids assertion that his mothers home is his home for purposes of section 7611, subdivision (d). While David undoubtedly is correct that a person can have more than one home, substantial evidence nonetheless supports the trial courts finding that the home of Davids mother was not his home. While there is conflicting evidence that might have supported a contrary finding, the juvenile courts finding also is supported by the record: throughout the relevant time period David spent his evenings with a different woman and their child at a separate apartment for whichunlike his mothers homehe paid rent.

Davids reliance on In re Jerry P., supra, 95 Cal.App.4th 793 to establish that he was not required to prove that he received D. into his home is misplaced. In In re Jerry P., supra, at pages 811-812, 816-817, the court held that a fathers failure to receive an infant into his home did not conclusively preclude presumed father status under section 7611 where the mother, the social services agency, and the hospital had prevented him from taking the infant into his home. In the present case, there is no evidence that David attempted to bring D. into his home but was prevented from doing so. (See In re Zacharia D. (1993) 6 Cal.4th 435, 451 [father was not precluded from attaining presumed father status by the mother or a third party].) Hence, the court did not err in finding that David did not establish a right to presumed fatherhood status under section 7611, subdivision (d).

Voluntary Declaration of Paternity under Section 7570 et seq.

Chapter 3, commencing with section 7570, sets forth the procedure for establishing paternity by voluntary declaration. Section 7571, subdivision (a), provides: [U]pon the event of a live birth, prior to an unmarried mother leaving any hospital, the person responsible for registering live births under Section 102405 of the Health and Safety Code shall provide to the natural mother and shall attempt to provide, at the place of birth, to the man identified by the natural mother as the natural father, a voluntary declaration of paternity together with the written materials described in Section 7572. Staff in the hospital shall witness the signatures of parents signing a voluntary declaration of paternity and shall forward the signed declaration to the Department of Child Support Services within 20 days of the date the declaration was signed. A copy of the declaration shall be made available to each of the attesting parents. With exceptions not applicable here, a completed voluntary declaration of paternity, as described in Section 7574 [form requirements], that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. ( 7573.)

Inclusion of the fathers name on the birth certificate creates a presumption of compliance with these sections for the purpose of establishing presumed father status under section 7611. (In re Raphael P., supra, 97 Cal.App.4th at pp. 737-738.) In In re Raphael P., the court reasoned that Health and Safety Code section 102425 prohibits listing an unmarried father on the birth certificate absent a signed voluntary declaration of paternity,[3] so that the inclusion of the fathers name on the birth certificate is prima facie proof that he signed a voluntary declaration of paternity. (97 Cal.App.4th at p. 738.) Moreover, because section 7571, subdivision (a) imposes an official duty on hospital staff to forward signed voluntary declarations of paternity for filing, once the father provided prima facie proof of the declaration, he was entitled to rely upon the presumption of Evidence Code section 664 to establish that the document was properly filed, and it was the Departments burden to disprove this fact. (97 Cal.App.4th at p. 738.)

David and D. argue that the certified copy of D.s birth certificate, which was admitted into evidence at the hearing, is prima facie evidence that David signed the declaration of paternity, although the declaration itself was not in evidence, and that the declaration was duly filed. There being no evidence to the contrary, they assert, David therefore met the requirements of section 7570 et seq. and is entitled to presumed father status. The bureau contends David and D. did not properly present this contention in the trial court so that the issue has been waived. Moreover, the presumption created by sections 7573 and 7611 is rebuttable. The presumption can be rebutted by evidence that the declaration of paternity in fact was not signed or not filed with the proper agency. (In re Raphael P., supra, 97 Cal.App.4th at pp. 738-739.) The bureau suggests that it did not pursue these questions in the trial court because David and D. did not assert the presumption below. Still further, it contends that if the issue had been presented it might have persuaded the court to reject Davids voluntary declaration of paternity, or to have rescinded the declaration on equitable grounds,[4] asserting that the declaration was not honestly completed because the mother could not have honestly stated that David is the only possible father as required under section 7574, subdivision (b)(4).[5]

As the bureau acknowledges, Davids attorney did argue in connection with his initial request to be considered D.s presumed father that David signed a declaration of paternity [or] whatever document was given at the hospital and that his name was put on the birth certificate. The birth certificate was received in evidence at the second hearing when this issue was considered and Davids attorney repeatedly argued that David should be deemed a presumed father because his name was on the birth certificate. Thus, the contention was hardly waived. Moreover, the juvenile court is under a duty to inquire into and determine the parentage of minors involved in dependency proceedings. As soon as is practicable the court must inquire, using its discretion, into various matters that are suggested in the Welfare and Institutions Code and in the California Rules of Court, including [w]hether any man has formally or informally acknowledged or declared his possible paternity of the child, including by signing a voluntary declaration of paternity. (Welf. & Inst. Code,  316.2, subd. (a)(5); Cal. Rules of Court, rule 5.635(b)(6).) As indicated above, the court did order the bureau to inquire into whether paternity had previously been declared by a superior court or judgment, but the record reveals no response to this inquiry. And, despite Davids explicit assertion that he had signed a declaration of paternity, no inquiry appears to have been made to determine the accuracy of that assertion.

Nonetheless, when Davids claim of presumed fatherhood was considered at the second hearing, Davids argument focused exclusively on his contention under section 7611, subdivision (d), that he was D.s presumed father because he had held her out as his natural child and received her into his home. His attorneys references to the birth certificate David signed were made in support of his argument that David held D. out as his natural child. The argument did not explicitly direct attention to the effect of the birth certificate in triggering the statutory presumption. The bureau is correct that none of the parties addressed the effect of the statutory presumption, nor did they argue whether the presumption had been overcome or whether there were grounds to avoid the impact of the presumption. Certainly the juvenile court did not rule on any of these issues.

The issue of parentage is of course central to dependency proceedings. As indicated above, the statute directs the court to address this issue as soon as practicable. David and D. are entitled to consideration of their claim that David is D.s presumed father by virtue of having signed a voluntary declaration of paternity, and the bureau is entitled to have the court consider its arguments as to why the presumption should not apply. All of these issues should be determined in the first instance in the trial court.[6]

Disposition

The order denying Davids request to be considered D.s presumed father is vacated and the matter is remanded to the juvenile court for further proceedings consistent with this opinion.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] All statutory references are to the Family Code unless otherwise noted.

[2] David has refused to submit to genetic testing to establish biological paternity. The court sustained relevancy objections to some of the mothers testimony regarding who might otherwise be the biological father because it considered Davids request to have been based exclusively on the ground that he received the child into his home and he openly holds out the child as his natural child ( 7611, subd. (d)). The mother was allowed to testify that while she did not remember having sex with the other man, she believed that she had because she later contracted a sexually transmitted disease. She also testified that she called the other man to come to the hospital when D. was born but that he refused to do so and she therefore listed David as the father. The other man denies he is the father and said they did not have a sexual relationship.

[3] Health and Safety Code section 102425, subdivision (a)(4), provides in relevant part: If the parents are not married to each other, the fathers name shall not be listed on the birth certificate unless the father and the mother sign a voluntary declaration of paternity at the hospital before the birth certificate is prepared.

[4] Section 7575, subdivision (a) describes the conditions under which [e]ither parent may rescind the voluntary declaration of paternity. Section 7575, subdivision (c)(4) provides, Nothing in this section is intended to restrict a court from acting as a court of equity.

[5] Section 7574, subdivision (b)(5) requires that the declaration of paternity contain [a] statement by the mother that . . . the man who has signed the voluntary declaration of paternity is the only possible father . . . .

[6] In remanding the matter, we express no opinion concerning the merits of the conflicting positions of the parties, nor do we imply any opinion as to whether rescission of a declaration of paternity is available when no other man asserts parental rights to the child. (See In re Nicholas H. (2002) 28 Cal.4th 56.)