In re E.B.

Filed 12/10/07 In re E.B. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Jan G. Levine, Judge. Affirmed.

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

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________

Keith W. appeals from the April 3, 2007 orders denying his Welfare and Institutions Code section 388 petition and terminating his parental rights to E.B.^[1] He contends the court erred in finding: (1) he was neither E.B.s presumed father nor a Kelsey S. father,and therefore not entitled to reunification services;^[2](2) no changed circumstances warranted granting his section 388 petition to modify the order denying him reunification services; and (3) the section 366.26, subdivision (c)(1)(A) exception did not apply. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

When E.B. was born in June 2004, her half sibling, S.P., was already the subject of a sustained petition and was living in a legal guardianship with a paternal aunt and uncle (the B.s). E.B.s birth certificate did not name a father. Although appellant had lived with mother for a few years before E.B.s birth, there had been a break in their relationship while mother was incarcerated. Appellant disbelieved mother when, upon her release from custody, she introduced him to an infant E.B. as his biological daughter.^[3] Over the next few months, mother brought E.B. to appellants home about 20 times; each visit lasted five or six hours. In November 2004, appellant took a paternity test at the request of the Los Angeles County Child Support Services Division (Child Support Services Division).^[4] Before appellant learned the results of that test, mother dropped out. Appellant eventually learned that she had been rearrested and that E.B. had been taken into protective custody. Because he wasnt aware that E.B. was his child, appellant did nothing to locate her in foster care.

E.B., it turns out, had been detained on January 26, 2006, a month after her half sibling, A.K., was born with a positive toxicology for cocaine.^[5] According to the section 300 petition, the identity of E.B.s father was unknown. That day, mother submitted on an amended petition alleging that A.K. and E.B. were dependent children pursuant to section 300, subdivisions (b) [failure to protect] and (j) [dependent sibling]. The petition was sustained. Mother was denied reunification services pursuant to section 361.5, subdivisions (b)(10) [failure to reunify with sibling] and (13) [history of chronic drug use and resistance to treatment]. All unknown fathers were also denied reunification services and a section 366.26 permanent plan hearing was set for May 24, 2006.

In May 2006, the department recommended as a permanent plan for E.B. and A.K. that they join S.P. in legal guardianship with the B.s. When the B.s informed the social worker that they wanted to adopt the children, the department modified its recommendation to adoption. The matter was set for completion of an adoption home study and a permanent plan hearing on October 30, 2006.

On August 17, 2006, the B.s were contacted by a man who identified himself as MacIntosh and stated that he was E.B.s father. The next day, mother told a social worker that E.B.s father was Lane Macintosh. On September 5, 2006, the department contacted the Child Support Services Division in an effort to find Lane Macintosh. Several weeks later, a DNA sample was taken from E.B. and provided to the Child Support Services Division. The next day, October 3, 2006, the Child Support Service Division informed the department that appellant was possibly E.B.s father. When interviewed by a social worker a week later, appellant denied that he was E.B.s father. But on October 20, 2006, the department received paternity test results confirming that appellant was likely E.B.s father.

Appellant appeared at the October 30, 2006 hearing and an attorney was appointed to represent him. The court gave appellant monitored visits with E.B. It denied appellants request for reunification services but indicated it would consider a section 388 petition. The permanent plan hearing was continued to March 5, 2007.

Appellant thereafter began weekly monitored visits with E.B.; he brought clothes and toys to each visit. E.B. was at first afraid of appellant, but became more relaxed in his presence. The B.s told the social worker that they would be willing to allow the children to remain in contact with their biological parents even after adoption was finalized and at the six-month review hearing on January 16, 2007, the court ordered the department to discuss open adoption with appellant and the B.s.

On February 22, 2007, appellant filed a section 388 petition to change the no reunification services order. According to the motion, since learning that he was E.B.s biological father in October 2006, appellant had been paying child support and regularly visiting her; he now wanted reunification services with the ultimate goal of having E.B. permanently placed with him. In a supporting declaration, appellant explained that his delay in assuming his parental responsibilities was because he did not officially know he was E.B.s biological father until he learned the results of the paternity test.

At the March 5, 2007 hearing, the court denied appellants request that he be immediately declared E.B.s presumed father. The matter was continued for a hearing on appellants section 388 petition and for a contested section 366.26 hearing as to E.B. Parental rights were terminated as to the siblings.

In a report prepared for those hearings, the department noted that appellant had not submitted to a Live Scan, but CLETS revealed that he had an extensive criminal history.^[6] The report also indicated that the B.s had expressed some concerns about appellant to the social worker, including that, although E.B. was happy to see appellant when he visited, this happiness may have been because appellant always brought E.B. gifts and the B.s were unsure how E.B. would react if appellant ever came empty-handed; appellant had indicated that his motivation in pursuing custody was anger over being ordered to pay child support; and appellant had mentioned that he intended to send E.B. to live with his sister out of state after he obtained custody. E.B.s play therapist expressed concern about appellants ability to deal as effectively as the B.s with E.B.s sometimes difficult behaviors.

At the April 3, 2007 hearing on the section 388 motion, appellants counsel argued for reunification services: Her best interest is to have a loving, nurturing, physical and emotional relationship with the man who is her biological father, who has come forward, signed papers and also been proven by DNA that he cant be excluded as her father.  []  There is a benefit to a child in having that relationship he has attempted to posture those by his visits when he was able to see her when he was allowed to see her. I think it would be in her best interest to have that relationship.  []  Now she has been with others. However, through no fault of [appellants], he had not been allowed the establishing a relationship with her earlier, and I think fairness would dictate that we allow him either immediate placement with her or allow a period of at least six months of family reunification services. The court denied the petition, finding that it was not in E.B.s best interest that the prior orders be changed. It reasoned that E.B. had formed a bond with her siblings with whom she had been living, and with the B.s; that the B.s had expressed a willingness to allow appellant to have continued post-adoption contact with E.B.; that E.B. had emotional and developmental issues appellant appeared not to comprehend and might not be able to manage effectively; and that appellant had failed to pursue an earlier determination of paternity.

During the section 366.26 hearing that followed, appellant testified that when E.B. was born, mother told appellant that E.B. was his daughter, but appellant was unsure whether this was true. While E.B. was still an infant, mother used to bring her to visit appellant once a week; on those occasions, appellant would spend the whole day with E.B. and mother. Appellant described the visits as follows: Basically, when [mother] would bring her by, I would play with her. Because, you know, it was like ‑‑ to me it was like playing with a little doll. I would play with her a lot and as far as taking care of her, I would give [mother] money even though at that time I didnt think she was mine. Appellant recalled that mother left E.B. with appellant for 20 minutes on one occasion; he fed E.B. once; he never changed E.B.s diapers; and E.B. never showed any signs of distress when the visits ended. Since discovering, in October 2006, that he was E.B.s biological father, appellant had visited E.B. once a week; each visit lasted between 60 and 90 minutes and travel to and from the visits took about the same time. During these visits, E.B. called appellant daddy. When asked how E.B. responded to appellant during the visits, appellant testified: She is responding. She know who I am. You know, I could tell her come here, she comes to me. When I get ready to leave, I hug and kiss her. She responds to me well. Appellant testified that E.B. expressed no emotion when the visits ended. When asked why he thought it was important that his parental rights not be terminated, appellant explained that he was E.B.s biological father and it was not right that he be denied the right to see her and help raise her; he opined that E.B. would be able to adjust to him just as she had been able to adjust to her current caregivers. Unconvinced, the court terminated all parental rights as to E.B.; it found that that the section 366.26, subdivision (c)(1)(A) exception did not apply because there was no evidence that appellant had assumed a parental role in E.B.s life.

Father filed a timely notice of appeal.

DISCUSSION

A.                 The court did not abuse its discretion in finding appellant was neither a presumed
father nor a Kelsey S.father

Appellant contends the juvenile court erred in finding he was neither a presumed nor a Kelsey S. father, and therefore not entitled to reunification services.^[7] He argues that the evidence established that he fulfilled the conditions for presumed father status set forth in Family Code section 7611, subdivision (d) ( 7611(d)) because he took E.B. into his home when mother first introduced him to her, fed her and gave mother money for E.B.s financial support; and after learning that he was E.B.s biological father, appellant visited her regularly, brought her clothes and educational toys, hugged and kissed her, and she called him daddy. Alternatively, he argues the evidence established that he was a Kelsey S. father because to the extent he did not bring E.B. into his home, it was because he was prevented from doing so by third parties. We find neither argument persuasive.

Because appellant challenges the sufficiency of the evidence to support the trial courts contrary conclusions, we review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. [Citation.] 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.] (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650 (Spencer W.).)

1. Presumed Father Status

In dependency proceedings, a presumed father has greater rights than does a biological father, including the right to reunification services and custody. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 (Michael H.); In re Zacharia D. (1993) 6 Cal.4th 435, 448-449; Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 857.)

Section 7611 lists the conditions which must be met before a man can be identified as a presumed father. Relevant here is subdivision (d), which provides that a man is a presumed father if he receives the child into his home and openly holds out the child as his natural child. To fulfill this condition, a man must not only openly and publicly admit paternity, but must also physically bring the child into his home. (Michael H., supra, 10 Cal.4th at p. 1051.) Evidence that a man acted out of personal convenience and self-interest and not commitment to the child is sufficient to support a finding that the man did not fulfill the condition of receiving the child into his home. (Spencer W., supra, 48 Cal.App.4th at p. 1653 [man did not receive the child into his home but instead mother permitted father to reside in her home and fathers residence with child was not demonstrative of commitment to child but reflected father acted out of personal convenience and self-interest].)

In dependency proceedings, biological paternity is not a condition of presumed father status under section 7611(d). (In re Raphael P. (2002) 97 Cal.App.4th 716, 724.) Rather, presumed fatherhood status  denotes one who promptly comes forward and demonstrates a full commitment to his parental responsibilitiesemotional, financial, and otherwise[.]  [Citation.] A presumed fathers rights flow from his relationship (or attempted relationship) to the mother and/or child and not merely from his status as the biological father. [Citation.] The presumed fathers commitment to the child is a key consideration. [Citation.] (In re T.R. (2005) 132 Cal.App.4th 1202, 1209-1210.) It is the father who has the burden of establishing by a preponderance of the evidence facts supporting his entitlement to presumed father status. (Ibid.)

Here, appellant did not openly and publicly admit paternity, nor did he physically bring E.B. into his home within the meaning of section 7611(d). There was no evidence that appellant brought E.B. into his home as if he were E.B.s father. At best, the evidence established that appellant allowed mother to bring E.B. when she visited appellant. Moreover, appellant did not openly and publicly admit paternity. In fact, he steadfastly denied paternity. Even after he was tested, appellant did nothing to ascertain the results of that test. When he learned that mother had been incarcerated and E.B. was in the dependency system, appellant still did nothing to find out whether she was his child. And when contacted by the department in October 2006, appellant reiterated his disavowal of E.B. as his child. Only after his paternity was established to a virtual certainty and he was made to pay child support did appellant concede paternity and begin making an effort to establish a relationship with E.B. Appellant has not shown the level of diligent commitment required to attain presumed father status.

2. Kelsey S.

We are also unpersuaded by appellants argument that the evidence establishes that he met the standards to be determined a Kelsey S. father. In In re Elijah V. (2005) 127 Cal.App.4th 576, 583 (Elijah V.), the court explained that a biological father may be accorded parental rights and become what is known as a Kelsey S. father when he has not satisfied the section 7611(d) conditions, but has made a full commitment to his parental responsibilitiesemotional, financial, and otherwise but a third party has thwarted his attempt to achieve presumed parent status under section 7611(d). The factors to consider in determining whether a man is a Kelsey S. father are the mans conduct before and after the childs birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses commensurate with his ability to do so, and promptly took legal action to obtain custody of the child. [Citation.] He must demonstrate a full commitment to his parental responsibilities within a short time after he learned that the biological mother was pregnant with his child. [Citation.] He must also demonstrate a willingness to assume full custody. [Citation.] (Ibid.) Among the factors cited by the court in Elijah V. to support the finding that the appellant in that case was not a presumed father were that when his paternity was questioned, he became uninterested in the child and he never took legal action to establish paternity. (Ibid.)

Here, as in Elijah V.,the Kelsey S. factors are not present. Appellant did not demonstrate any commitment to his parental responsibilities when he first learned of E.B.s birth. On the contrary, he denied paternity and took no affirmative actions to establish paternity. Even though he cooperated in a paternity test at the request of the Child Support Services Division, appellant did nothing to follow up on the results of that test. Once appellant learned that E.B. was in the dependency system, he could have moved to have her submit to genetic testing (Fam. Code  7551 [party in civil action in which paternity is a relevant factor may move for order that child submit to genetic testing]), but did not do so. Appellants inaction up until the time he was forced to pay child support supports the finding that he is not a Kelsey S. father.

B.                 The Court Did Not Err in Denying Appellants Section 388 Petition

Appellant contends the court erred in denying his section 388 petition requesting reunification services. He argues that the requisite changed circumstances were that, when he learned that he was E.B.s biological father, he visited her regularly, began paying child support, participated in parenting classes and was willing to accept full responsibility for E.B. Moreover, he argues, the change was in E.B.s best interest because it could only benefit E.B. for her father to be given services to determine if he was able to safely care for her. We disagree.

In pertinent part, section 388 provides: (a) Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . .  []  . . .  []  (c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held. Thereafter, the court may modify the prior order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the childs best interests. (In re Amber M. (2002) 103 Cal.App.4th 681, 685 (Amber M.).)

The factors to be considered in determining whether the modification would be in the childs best interests are: (1) the seriousness of the problem leading to the dependency and the reason for its continuation; (2) the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and (3) the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. (Amber M., supra, 103 Cal.App.4th at p. 685; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) In In re Stephanie M. (1994) 7 Cal.4th 295, 317, our Supreme Court cautioned: In any custody determination, a primary consideration in determining the childs best interests is the goal of assuring stability and continuity. [Citation.] When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.  Thus, after termination of reunification services, the focus shifts from the parents custodial interest to the childs need for permanency and stability. (Amber M.,at p. 685.) Denial of a section 388 petition is reviewed for abuse of discretion. (Stephanie M., at pp. 318-319.)

Appellant has not met his burden of demonstrating that giving him reunification serviceswhich would necessarily delay E.B.s adoption ‑‑ would be in E.B.s best interests. First, the problems leading to E.B.s dependency were mothers frequent drug use and resultant failure to adequately protect and supervise E.Bincluding allowing her to be burned with cigarettes by a babysitteras well as mothers failure to reunify with E.B.s sibling. Although appellant was technically nonoffending, part of the reason E.B. was in a position to be neglected by mother was appellants failure to fulfill his own parental responsibilities. Thus, this factor militates against giving appellant reunification services.

Second, the evidence established that E.B. had not developed any parent-child bond with appellant. By contrast, she had developed a bond with the B.s, her prospective adoptive parents. Appellants effort to lay the blame on mother and/or the department is unpersuasive. Appellant was given the opportunity to step up to the plate when E.B. was born, but he refused to do so. Thus, this factor also militates against giving appellant reunification services.

Third, the nature of the change in circumstances urged by appellant was that he had learned the results of the paternity test. But it was appellants failure to follow up with the Child Services Division over a long period of time that caused the delay. Thus the third factor, the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner[,] also fails to support appellant. (Amber M., supra, 103 Cal.App.4th at p. 685)

Under these circumstances, the dependency court did not abuse its discretion in denying appellants petition to modify the prior orders denying him presumed father status and reunification services.

C.                 Section 366.26, Subdivision (c)(1)(A) Does Not Apply

Appellant contends the court erred by refusing to apply the section 366.26, subdivision (c)(1)(A) exception to the preference for adoption as the permanent placement plan. He argues that he maintained regular visitation with E.B. after he learned of the paternity results, he brought E.B. gifts, she was happy to see him, called him daddy, and asked about him between visits. We find no error.

Courts disagree on the appropriate standard of review for such a contention. (Cf. In re Cliffton B. (2000) 81 Cal.App.4th 415, 425 [substantial evidence test] with In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [abuse of discretion] (Jasmine D.).) We need not resolve the issue here, because appellant has not shown error under either standard.

If a dependent child cannot be safely returned to her parents at the end of the reunification period, adoption is the preferred permanent placement. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Under such circumstances, section 366.26 requires termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances . . . . ( 366.26, subd. (c)(1)(A).) One such circumstance is that the parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Ibid.) As the court explained in Autumn H., we interpret the benefit from continuing the [parent/child] relationship exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated. (Id.) The exception requires that the parent play a parental role in the childs life, not just a friendly or familiar one. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The parent has burden of showing the exception applies. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-954; Autumn H., at p. 574.)

Here, there was no evidence that appellant played a parental role in E.B.s life. When mother would bring E.B. to visit appellant before E.B. was detained, appellant was alone with E.B. just once for 20 minutes; he once fed her, but he never changed her diapers. Later, when it was confirmed that E.B. was his daughter, appellant had weekly monitored visits with her. That during those visits E.B. came to appellant when he called her, that she referred to him as daddy, that he brought her educational toys and that he hugged and kissed her was simply not enough to establish that he played a parental role in her life. Under these circumstances, appellant has failed to demonstrate that the trial court erred in finding the subdivision (c)(1)(A) exception did not apply.

DISPOSITION

The orders denying appellants section 388 petition and terminating his parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J. EGERTON, J.^*

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^[1] All undesignated statutory references are to the Welfare and Institutions Code.

^[2]Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).

^[3] This is according to representations made by appellants counsel at appellants first appearance in the matter on October 30, 2006.

^[4] Counsel speculated that this test was related to some effort on mothers part to get financial assistance.

^[5] Eventually, E.B. and A.K. joined S.P. in the B.s home.

^[6] This included 1973 convictions for assault with a deadly weapon and second degree burglary; a 1978 conviction for vehicular theft; a 1992 charge for assault with a deadly weapon which was dismissed when the victim refused to testify; a 1993 conviction for possession of a controlled substance; a 1996 probation revocation; and a 1997 conviction for assault with a deadly weapon.

^[7] Respondents argument that appellant waived this issue because he did not request presumed father status is contrary to the record, which establishes that his counsel did so at the hearing on March 5, 2007. Regarding Kelsey S., appellants section 388 motion is on an approved Judicial Council form which does not require citation to legal authorities. Appellants supporting declaration suggests that he was denied the opportunity to promptly admit paternity by the lack of due diligence of the Child Support Services Division in completing the paternity test. This was sufficient to preserve the issue for appeal.

^* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.