In re Lillian R.
Filed 5/23/13
In re Lillian R. CA1/2
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opinion has not been certified for publication or ordered published for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
In re LILLIAN R., a Person
Coming Under the Juvenile Court Law.
robert s.,
Petitioner,
v.
THE SUPERIOR COURT OF THE COUNTY
OF MENDOCINO,
Respondent;
MENDOCINO COUNTY HEALTH & HUMAN SERVICES AGENCY,
Real
Party in Interest.
A136734, A137251
(Mendocino
County Super.
Ct.
No. SCUK-JVSQ-12-16497-01)
Robert
S. (Robert), the biological father of Lillian R., seeks
California Rules of Court, rule 8.452, of the juvenile court’s order setting a
Welfare and Institutions Code section 366.26 hearing regarding Lillian.
should not have been set because the court should have ruled that he was
Lillian’s presumed father and offered him reunification services. Robert also appeals the juvenile court’s
order denying his request for presumed father status. At Robert’s request, we consolidated the
appeal with the writ petition.
name="_ftnref2" title="">[2] We affirm the juvenile court’s order denying
Robert presumed father status, and deny Robert’s petition seeking writ relief.
BACKGROUND
The Detention and Petition
On
April 18, 2012, Lillian was
detained. A social worker from the Child
Protective Services (CPS) had been contacted by the sheriff’s department to
come and detain Lillian, as both of her parents, Robert and mother, were being
arrested. The parents had argued inside
Robert’s mobile home. During the fight,
they broke a mirror on a cabinet and glass was on the counter and floor.
The
detective arresting Robert and mother noticed track marks and sores on much of
the exposed parts of Robert’s body.
Inside Robert’s mobile home, the detective saw two disposable hypodermic
syringes “sitting on a cabinet adjacent [to] the bed†with a folder or piece of
yellow tablet paper that contained “a white powdery substance that test[ed]
positive as methamphetamine.†He also
observed a tablespoon and several baggies.
Both parents were under the influence of controlled substances.
The
social worker interviewed both parents separately. Mother stated that she did not live with
Robert, but lived with her parents.
Robert admitted that he was a regular user of methamphetamine and had
attempted to quit on numerous occasions.
He confirmed that mother and Lillian did not live with him but were
visiting.
On April 20, 2012,
the Mendocino County Health and Human
Services Agency (the agency) filed a petition alleging that Lillian, who
was less than six months old at the time, came within the provision of section
300, subdivision (b). The petition
stated that mother and Robert were unable to supervise or protect the child as
mother and Robert had a violent relationship and Lillian was present when
mother and Robert fought and broke a cabinet mirror. It further alleged that mother and Robert had
substance abuse problems. It also
alleged that Robert had pleaded guilty to driving under the influence and
leaving the scene of an accident.
The
juvenile court held the detention hearing
on April 23, 2012. The court appointed
an attorney for mother and an attorney for Robert and the hearing was continued
for one day because counsel for the child needed a one-day continuance. Although it was continuing the detention
hearing, the court proceeded to consider a few matters, including the baby’s
parentage. Mother informed the court
that she had never married Robert and was not living with him when Lillian was
born. When asked whether Robert was on
Lillian’s birth certificate, mother responded, “No.†She also confirmed that Robert had not signed
anything or acknowledged in any manner that Lillian was his child. Mother believed that Robert was Lillian’s
parent because mother and Robert had an “off and on†relationship for the year
prior to Lillian’s birth. Mother stated
that she had not been living with Robert but he was the only person she “had
been with.†She maintained that Robert
had never taken care of Lillian. There
had not been any DNA testing and, according to mother, Robert had not provided
any financial support. When asked
whether Robert told people he was Lillian’s father, mother said: “I guess so.
I don’t know if people have asked.â€
The
juvenile court issued temporary detention
orders for Lillian. The court stated
that it was important for Robert to be a part of the proceeding.
Both
Robert and mother and their respective counsel appeared at the continued
detention hearing on April 24, 2012.
Lillian’s maternal grandfather was also present at the hearing. Robert told the court that he was not on
Lillian’s birth certificate. He stated
that he did not know when Lillian was born but that he had held himself out as
her father. Robert acknowledged that
there was no court document showing that he held Lillian out as his child.
Robert’s
counsel stated that Robert was requesting to be found the presumed father of
Lillian and that Robert had held the child out to be his own. His counsel explained that Robert had visited
the baby “approximately every week to week and a half.†Robert claimed that he had “helped to provide
food and diapers on occasion.†Robert
conceded that he had not paid any child support and had only provided “minor
necessities for the child.â€
Counsel
for mother stated that mother claimed Robert had “given extremely minimal
assistance.†Counsel advised that mother
“would prefer that he come forward, show a full commitment and then maybe
request presumed father status in a few months after he’s demonstrated a full
commitment.â€
The
juvenile court responded that it would wait until the
Robert’s request for presumed father status. All parties submitted on detention and the
court ordered Lillian to remain detained.
Jurisdiction, the Amended
Petition, and Robert’s Request for Presumed Father Status
On
May 22, 2012, the agency filed a jurisdictional report. The report indicated, among other things,
that on November 16, 2011, Robert was at the hospital. Robert told a deputy that the maternal
grandfather had attacked him after ordering him to stay away from his daughter
and to get a job to support the baby.
The deputy interviewed the maternal grandfather and he claimed that
Robert had accused him of keeping Lillian away from him. Mother was also interviewed and she indicated
that she had no intention of marrying Robert.
She insisted that the allegations against Lillian’s maternal grandfather
were false.
Both parents
appeared at the continued jurisdictional hearing on May 30, 2012. Robert filed a waiver of rights form and both
parents submitted the matter to the court.
The court amended the petition and found it true by a preponderance of
the evidence.
Robert asked the
court to declare him to be the presumed father.
The court replied that it would continue this issue to the dispositional
hearing.
On
June 11, 2012, the agency filed an amended petition. The petition named Robert as the biological
father, but otherwise the allegations in the amended petition did not differ
significantly from those in the original petition.
The
following day, on June 12, 2012, Robert filed a request to be found the
presumed father of Lillian under Family Code section 7611, subdivision
(d). He also asked for
Disposition
On
June 12, 2012, the agency filed its dispositional report. The agency recommended reunification services
for mother. The agency indicated that
Lillian had already been placed with the maternal grandparents. The social worker disclosed that she had
tried to contact Robert and mother, but neither had called her back. Robert had not visited Lillian. He had not contacted the agency and had not
asked for visitation. The agency
maintained that Robert was an alleged father and not entitled to reunification
services.
The
juvenile court held the dispositional hearing on June 14, 2012. Mother and her attorney and Robert’s attorney
were present; Robert was not present.
Counsel for Robert objected to the agency’s recommendation not to offer
Robert services and asserted that he was a presumed father. The court ruled that there was insufficient
evidence to grant Robert “presumed father status at this point. To the extent that there’s that request
today, that’s denied.†The court found
that the declaration of Robert’s counsel was based on hearsay and it would not
consider counsel’s statements about what Robert had told her. The court elaborated: “[B]ased on the information in the report and
the nonhearsay statements in [counsel’s] declaration, I don’t find sufficient
evidence to give him presumed father status.
He’s not had any contact with the agency, and there’s been no
visits. In terms of him holding out the
child as his own, I don’t think there’s––there’s not admissible evidence before
the court that would show that there’s a sufficient quantity or quality with
respect to that to satisfy the requirements of [Family Code section] 7611,
[subdivision] (d).â€
The
court continued: “So you know, that’s
not––that’s not set in stone. If he does
take steps necessary to demonstrate presumed father status and show that he
wants services, that’s another matter.
But at this time I’m not going to grant services to the father.â€
The
juvenile court heard argument from mother’s counsel that Robert had appeared at
her home in the morning before this hearing and had threatened her. A neighbor had called the police. The court ordered Robert to have no contact
with mother except through the attorneys.
The court ordered reunification services for mother. The court found that no biological or statutorily
presumed father status had thus far been established and it was not in the best
interest of the child to offer reunification services to the alleged
father. It ruled that Robert should not
be offered reunification services pursuant to section 361.5, subdivision (a). The court also found that visits between
Lillian and Robert would be detrimental to Lillian’s well-being.
Robert’s Amended Motion for
Presumed Father Status
On
July 5, 2012, Robert filed a request to add to the calendar his motion to be
declared as Lillian’s presumed father.
Robert attached his declaration avowing that he had provided financial
support for food and diapers. He
asserted that he “saw Lillian for visits every seven to ten days, and [that
mother] and Lillian ha[d] spent the night†in his home “approximately 10
times.â€
On
July 10, 2012, Robert filed the JV-505 form, “Statement Regarding
Parentage.†He did not check the boxes
indicating that he had established parentage, that the child had lived with him
for any period of time, or that he had participated in any activities with the
child. He claimed that he provided money
for the child’s food and diapers, but did not specify the amount. He checked the box indicating that Lillian
had spent time with Robert’s mother and stepfather, but did not specify the amount
of time. On this same date, Robert filed
an amended memorandum of points and authorities. He attached photographs of Lillian with him
and with his parents and him.
On
July 11, 2012, the court held a hearing on a 30-day substance abuse review as
to mother. Robert was present but mother
was not. The court was informed that
mother had not participated in any of the reunification services and had not
engaged in any treatment.
The juvenile court
also considered Robert’s amended request for presumed father status. Counsel for the minor supported a DNA test
for Robert and expressed concerns about the minimal amount of time Robert had
spent with Lillian before her detention and the lack of contact after her
detention. Counsel added: “However, he is here, he’s willing to step
forward, he’s asking for presumed father status. I think that says something about his
interest in commitment. So I have no
objection to the court finding presumed father status today.â€
County counsel
responded that the baby had not seen Robert in over three months and Robert had
not returned the social worker’s phone calls.
The agency had no opportunity to observe Robert with the child. Counsel added that it was “baffling why he is
requesting presumed father status when he hasn’t even made a request to see his
daughter in all this time. So I think at
this point if the father does actually have an interest in this child, perhaps
a good starting point would be to look at modifying the no-visitation order and
have him meet with the social worker to assess whether visitation is
appropriate at this time.â€
Counsel for Robert
stated that his social worker wanted him to engage in services before beginning
visitation. Counsel for Robert argued
that the child should have two parents.
The juvenile court
decided not to rule on the request for presumed father status at this
time. The court ordered a paternity test
to take place. The court modified the
no-visitation order to permit Robert a minimum of one visit with Lillian to
occur before the next hearing scheduled for August.
De Facto Parent Status and August
Hearings
On
August 2, 2012, Lillian’s maternal grandparents filed a request for de facto
parent status and a de facto parent statement.
The maternal grandparents indicated that Lillian had been living with
them since a couple of days after her birth, and that they had responsibility
for the day-to-day care of the child.
On
August 8, 2012, a 60-day substance abuse review regarding mother was held. Mother appeared and the court was told that
mother was still abusing drugs and not engaged in services. The court admonished mother that she had “a
lot of stuff to do†and set a 90-day substance abuse treatment review.
At
a hearing on August 28, 2012, the agency reported that the DNA results were
still not available. Over an objection
by Robert’s counsel, the court granted the agency’s request for a continuance
on the determination of father’s request for presumed father status. Robert was not present because he was in the
hospital as a result of injuries he had suffered in a car crash. The court granted the maternal grandparents’
request for de facto parent status.
The Paternity Status Hearing and
Robert’s Notice of Appeal
The
agency on September 17, 2012, filed its report and recommendation regarding
paternity status. The DNA test confirmed
Robert as the biological father of Lillian with a 99.99 percent probability.
The
report declared that Robert was facing numerous legal problems and had an
extensive history of substance abuse.
The report set forth Robert’s numerous arrests in California and other
states. The accident in August 2012,
which prevented Robert from attending the hearing on August 28, 2012, was
caused by Robert; he had been driving while under the influence. The accident injured Robert and two teenagers. After he was released from the hospital,
Robert went to Michigan to live with his parents and have them care for
him.
The
report was prepared by social worker Joan Ross, and she noted that Robert had
not contacted the agency to request visitation with Lillian until after the
dispositional hearing. Robert had
received one court-ordered visitation with Lillian, which occurred on July 25,
2012. Ross supervised the visit and
observed that the “visit went fine with [Robert] only needing a couple prompts
to check Lillian’s diaper or offer her a bottle when she was fussing. The baby fell asleep during the latter half
of the visit while [Robert] held her.
[Robert] did not bring any essentials for the baby to this visit. However, the grandparents provided a full
diaper bag with necessities to meet her needs.â€
Robert
had requested through his attorney a visit with Lillian while he was in the
hospital after his August accident. The
agency, however, declined to provide a visit because of the seriousness of his
injuries and the probability that he was medicated. Robert had not sent any items to meet
Lillian’s needs and had not sent any gifts or other items. Robert had not made any offer to provide any
financial help for Lillian’s care. Ross
stated that it appeared that Robert had never independently cared for
Lillian. The agency recommended that
Robert not receive reunification services.
Attached
to the agency’s report was, among other things, the report by the officer for
the California Highway Patrol regarding Robert’s accident on August 19,
2012. After talking to people involved
in the accident, the officer concluded that Robert was traveling northbound and
had crossed over the double yellow lines into the lane of the southbound
traffic. The officer noticed that Robert
had scars and scab marks on his arm consistent with illegal drug use. The officer smelled the “strong odor of
marijuana emitting†from his vehicle.
Inside the vehicle, the officer found narcotics, narcotic paraphernalia,
and evidence of prescription drug abuse.
The officer concluded that Robert caused the collision and was driving
under the influence of drugs.
The
juvenile court held a hearing on September 18, 2012, on Robert’s request for
presumed father status and reunification services. Robert’s counsel was present and stated that
Robert was in Michigan; counsel waived Robert’s appearance. The court acknowledged that it had the tests
indicating that Robert was the biological father of the child and it had the
agency’s report and recommendation.
Counsel
for Robert argued that Robert had held Lillian out as his own child and that
maternal grandfather had thwarted his efforts to be in his child’s life. He also cited the photographs showing Robert
with the baby. He stressed that Lillian
had stayed at Robert’s home overnight at least 10 times and that Robert had
visited with Lillian the one time the agency permitted him to visit her. Counsel argued that Robert should not be denied
presumed father status simply because mother and the maternal grandparents did
not like him.
Counsel
for mother asserted that mother would testify that she came to Robert’s home
and stayed overnight with the child about three times, not 10 times. Counsel maintained that mother would testify
that Robert did not change Lillian’s diaper and might have fed her one
time.
Counsel
for the child argued that Robert presented no evidence that he tried to have
contact with Lillian, which was thwarted.
The minor’s attorney agreed with the agency’s position that Robert is
merely a biological father. Counsel
stressed that Robert “had minimal contact†with Lillian and had not shown much
effort during these dependency proceedings.
Counsel added that Robert was absent from many of the court hearings even
before he moved out of the state.
Counsel
for the agency maintained that the record was devoid of any evidence showing
that anyone thwarted Robert’s efforts to establish a relationship with Lillian
prior to the involvement of CPS.
Furthermore, after Lillian was detained in April 2012, Robert did not
request visitation until the dispositional hearing on June 14, and then he did
not appear at the dispositional hearing.
She emphasized that the dispositional hearing was especially important
as that was when Robert was named the alleged father in the report, was denied
reunification services, and was ordered not to have any visitation with
Lillian. Counsel stated that the only
time Robert requested visitation was when he was in the hospital.
The
maternal grandfather asked for permission to speak at the hearing. He stated that the baby had been in his home
since she was born and Robert never offered any support even though he knew
where they lived. Grandfather disclosed
that Robert’s family never called and never offered any support. Robert never called to ask to see the
baby. He testified that mother took
Lillian to Robert’s mobile home three or four times. Grandfather admitted that he never invited
Robert to the house or talked to him about Lillian. Grandfather did drive to Robert’s home and
take him to the hospital after Lillian was born.
The
juvenile court took the matter under submission and then issued its ruling at a
hearing on September 26, 2012. The court
explained: “[T]his is kind of a close
case in a sense that father, there was some evidence that the father held
himself out to a family member. There’s
a photograph and also some evidence that he received the child in his home, the
child visited there on at least a few occasions.†The court concluded that Robert had not met
his burden of proof of establishing presumed father status by a preponderance
of the evidence. Thus, the court denied
Robert’s request for presumed father status.
On
September 28, 2012, Robert filed a notice of appeal from the order denying him
presumed father status.
The Six-Month Status Review and
Robert’s Writ Petition
The
agency filed its six-month status review report on November 14, 2012. The report indicated that Robert was in jail
awaiting sentencing. Mother, according
to the report, had continued to abuse drugs and had not complied with the
services set forth in her case plan. The
agency recommended terminating mother’s reunification services.
On
November 28, 2012, the juvenile court held the six-month status review
hearing. Both parents appeared. Robert’s counsel again requested the court to
grant Robert presumed father status. The
court responded that it could not rule on this issue because it was on
appeal. Counsel for Robert objected “to
every request made by the†agency and to all of its recommendations. Robert’s attorney also objected to the
setting of a section 366.26 hearing and asked for reunification services for
Robert. Counsel for Robert added that
Robert wanted the court to know that he had participated in a course on men’s
alternative to violence while in custody and that he had been attending
Alcoholics Anonymous and Narcotics Anonymous meetings. He also wanted the court to know that he was
awaiting trial on the charges pending and not awaiting sentencing as stated in
the agency’s report.
The
juvenile court found that clear and convincing evidence showed that the return
of Lillian to mother would create a substantial risk of detriment to the
safety, protection or physical or emotional well-being of the child, and it
adopted the findings and recommendations of the agency. The court terminated mother’s reunification
services. The court ordered no visitation
for Robert. It set a section 366.26
hearing for March 28, 2013.
On
November 30, 2012, Robert filed a notice of intent to file a writ petition,
challenging the setting of the section 366.26 hearing. On January 4, 2013, Robert filed his writ
petition and we issued an order to show cause on January 8, 2013. At Robert’s request, we granted a temporary
stay of the section 366.26 hearing scheduled for March 28, 2013, and
consolidated the writ with Robert’s appeal.
All of the briefs in the appeal were filed by the end of April 2013.
DISCUSSION
A. No Forfeiture or Waiver
The
agency contends that we should dismiss Robert’s appeal challenging the denial
of his request for presumed father status and that this issue was not preserved
for writ review. The agency maintains
that the juvenile court denied Robert reunification services and presumed
father status at the dispositional hearing.
The dispositional order in a dependency proceeding is an appealable
judgment. Robert did not appeal from
that judgment and thus, according to the agency, Robert has forfeited his right
to object to the court’s ruling on his presumed father status.
“A
judgment in a proceeding under Section 300 may be appealed in the same manner
as any final judgment, and any subsequent order may be appealed as an order
after judgment.†(§ 395, subd.
(a)(1).) “In a section 300 proceeding, the
order entered at the dispositional hearing is a final judgment . . . .†(In re
Daniel K. (1998) 61 Cal.App.4th 661, 666.)
California Rules of Court, rule 8.406(a)(1) provides that a parent has
60 days from the date of an appealable order in
appeal. This rule is
jurisdictional. (Cal. Rules of Court,
rule 8.406 (c); Hollister Convalescent
Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-670.)
In the
present case, the dispositional order was filed in June 2012, and Robert filed
his notice of appeal more than 60 days later in September 2012. Robert, however, is not appealing the
dispositional order. His appeal challenges
the juvenile court’s order in September 2012, which again denied him presumed
father status.
Robert’s
writ petition is from the setting of the section 366.26 hearing. His writ raises the same issue raised by his
appeal. He claims that he should have
been given presumed father status and reunification services and that the
section 366.26 hearing should not have been set.
The law is
clear that “an unappealed disposition or postdisposition order is final and
binding and may not be attacked on an appeal from a later appealable
order.†(In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) “In
other words, ‘A challenge to the most recent order entered in a dependency
matter may not challenge prior orders for which the statutory time for filing
an appeal has passed.’ [Citation.] The rule serves vital policy considerations
of promoting finality and reasonable expedition, in a carefully balanced
legislative scheme, and preventing late-stage ‘sabotage of the process’ through
a parent’s attacks on earlier orders.
[Citation.]†(
349, 355.)
We agree with the agency that we cannot address
claims of error concerning the dependency court’s dispositional order. However, we can address any claim of error
regarding the order issued on September 26, 2012. The evidence presented at the September
hearing was significantly different from that presented at the dispositional
hearing: Robert did not attend the
dispositional hearing; the DNA testing had not been completed by the time of
the dispositional hearing; and Robert’s counsel submitted almost no admissible
evidence at the dispositional hearing.
this appeal and writ, Robert cannot challenge any findings related to the
dispositional order, but he can claim that the new and additional evidence
submitted at the September 2012 hearing established that he was the presumed
father.
The agency relies on Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391 (
appeal and conclude that Robert cannot challenge the denial of his presumed
father status in his writ petition. In
reunification services at the dispositional hearing, but the father had
received them. (Id. at p. 1394.) About six
months later, the juvenile court terminated the father’s services and set a
section 366.26 hearing. (
attempted to attack the denial of her reunification services. (Id. at
p. 1395.) The appellate court held that
the mother had forfeited the right to challenge the denial of reunifications
services because she had not filed a timely appeal from the dispositional
order. (Id. at pp. 1395-1396.)
The present case is clearly distinguishable from
1391. The trial court in
reunification services at the dispositional hearing and did not, subsequently,
revisit the issue because of new or additional evidence. The mother’s belated attempt in
dispositional order by filing a writ after the juvenile court terminated the
father’s services and set a section 366.26 hearing was clearly an improper
attempt to sidestep the effect of section 395.
(Wanda B., at p. 1396.) In contrast, here, the juvenile court at the
hearing in September 2012 considered new and additional evidence. Moreover, the court made it clear at the
dispositional hearing that its ruling on presumed father status was not final
in the respect that the court invited Robert to ask the court to reconsider
this issue when he had new or additional evidence supporting his claim of
presumed father status.
Accordingly, we conclude that Robert has not
forfeited any challenge to the order in September 2012 that denied him presumed
father status.
name="_ftnref4" title="">[4]
B.
Only a
presumed father enjoys the panoply of rights set forth by the dependency
statutes and a father who is an alleged or a biological father is entitled to
fewer rights. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The Family Code sets forth the criteria for
determining presumed father status, which include: a man marries or attempts to marry the child’s
mother, he and the mother execute a voluntary declaration of paternity, or he
receives the child into his home and openly holds out the child as his natural
child. (Fam. Code, §§ 7571; 7573; 7611,
subds. (a)-(d).)
father is one whose paternity of the child has been established, but who has
not established that he qualifies as the child’s presumed father. (In re
Zacharia D., 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.)
a man’s status as a presumed father is critical. (In re
O.S. (2002) 102 Cal.App.4th 1402, 1410.)
“[P]resumed
fathers possess far greater rights than alleged or biological
fathers. [Citation.] Only a presumed, not a mere biological,
father is a ‘parent’ entitled to receive reunification services, and only a
presumed father is entitled to custody of his child. [Citation.]
In contrast, the juvenile court ‘may’ order reunification services for a
biological father if the court determines that the
services will benefit the child.†(
Cal.App.4th 586, 596; see also In re A.A.
(2003) 114 Cal.App.4th 771, 779-780.)
Here, the paternity test
established that Robert was the biological father. However, “ ‘the mere existence of a
biological link does not merit . . . constitutional protection’
[citation]; rather, the federal Constitution protects only the parental
actively developed by ‘ “com[ing] forward to participate in the rearing of his
child†’ . . . and ‘act[ing] as a father.’ â€
Simply because a man is the biological father does not mean that he is
entitled to constitutional rights. (
1043, 1052.) “ ‘Parental rights do not
spring full-blown from the biological connection between parent and child. They require relationships more enduring.’
†(Lehr
v. Robertson (1983) 463 U.S. 248, 260, italics omitted.) Accordingly, a biological father who does not
fully grasp the opportunity to establish a relationship with his child does not
have a constitutional right to object to the termination of his rights. (Id. at
p. 262; Adoption of Michael H., at p.
1060.)
Sometimes, the mother or
another third party prevents the purported father from satisfying the factual
predicates needed for “presumed father†status, such as barring him from
physically receiving the child into the home.
(Adoption of Kelsey S. (1992)
1 Cal.4th 816, 825 (Kelsey).) “[A]n unwed biological father who comes
forward at the first opportunity to assert his paternal rights after learning
of his child’s existence, but has been prevented from becoming a statutorily
presumed father under [Family Code] section 7611 by the unilateral conduct of
the child’s mother or a third party’s interference†acquires a status
“equivalent to presumed parents status under [Family Code] section 7611.†(In re
M.C. (2011) 195 Cal.App.4th 197, 213, 220.)
Thus, an unwed man may have a constitutional right to presumed father
status if he “promptly comes forward and demonstrates a full commitment to his
parental responsibilities––emotional, financial, and
otherwise . . . .†(
“both before and after the child’s
birth . . . .†(Ibid.) “Once the father
knows or reasonably should know of the pregnancy, he must promptly attempt to
assume his parental responsibilities as fully as the mother will allow and his
circumstances permit. In particular, the
father must demonstrate ‘a willingness himself to assume full custody of the
child––not merely to block adoption by others.’ †(Ibid.) Where an unwed father has demonstrated such a
parental commitment, his federal constitutional right to due process prohibits
terminating his parental rights absent a showing of his unfitness as a
parent. (In re Zacharia D., supra, 6 Cal.4th at p. 450.)
In the present case, Robert claims that the
court should have found him to be a presumed father under Family Code section
7611, subdivision (d), or it should have found that he was a
of presumed parentage status under the substantial evidence standard.†(In re
M.C., supra, 195 Cal.App.4th at p. 213.)
“ ‘[W]e 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.]’
[Citation.]†(
C. Robert Is Not Entitled to Presumed Father Status Under Family Code
Section
Family Code section 7611 sets forth several
rebuttable presumptions under which a man may qualify as a presumed
father. If the alleged or biological
father meets his burden of establishing the foundational facts supporting his
entitlement to presumed father status, the statutory
presumption may be rebutted in an appropriate action only by clear and
convincing evidence. (Fam. Code, § 7612,
subd. (a); In re M.C., supra, 195
Cal.App.4th at p. 212.)
The only rebuttable
presumption under Family Code section 7611 at issue here is subdivision (d),
which states that the man “receives the child into his home and openly holds
out the child as his natural child.â€
(Fam. Code, § 7611, subd. (d).)
This statute requires that the unwed biological father “ ‘must not only
openly and publicly admit paternity, but must also physically bring the child into his home.’ †(In re
M.C., supra, 195 Cal.App.4th at p. 212.)
To determine “ ‘whether a man has “receiv[ed a] child into his home
and openly h[eld] out the child†as his own [citation], courts have looked to
such factors as whether the man actively helped the mother in prenatal care;
whether he paid pregnancy and birth expenses commensurate with his ability to
do so; whether he promptly took legal action to obtain custody of the child;
whether he sought to have his name placed on the birth certificate; whether and
how long he cared for the child; whether there is unequivocal evidence that he
had acknowledged the child; the number of people to whom he had acknowledged
the child; whether he provided for the child after it no longer resided with
him; whether, if the child needed public benefits, he had pursued completion of
the requisite paperwork; and whether his care was merely incidental.’ †(In re
J.H. (2011) 198 Cal.App.4th 635, 646.)
When arguing that he is entitled to presumed father status, in his
appeal, Robert cites In re A.A., supra, 114
Cal.App.4th 771, as setting forth an expansive interpretation of the “receivesâ€
requirement under subdivision (d) of Family Code section 7611. (In re
A.A., at p. 784.) In
presumed father, and the juvenile court found that the biological father was
entitled to presumed father status. The
appellate court reversed because the evidence was that the biological father
had lived with the mother for only one to three months after the child’s birth,
had visited the child for only about one year after that, and had failed to
support the child financially at any time.
(Id. at pp. 786-787.) The appellate court concluded that the other
man claiming to be the presumed father had presented evidence to satisfy the
presumption under Family Code section 7611, subdivision (d). Although the child had not lived with this
man on a full-time basis, this man had been involved with the child from the
very beginning, had cared for the child, had provided financial support, and
had held himself out as the child’s father over the course of many years. (In re
A.A., at p. 784.)
Robert cites
in support of his argument that he is entitled to presumed father status but
this decision actually supports the juvenile court’s finding that he is not
entitled to that status. The appellate
court in In re A.A. concluded that
the biological father was not entitled to presumed father status, even though
he had lived with the child for one to three months, which is significantly
longer than Lillian’s three to 10 overnight visits with Robert.
been involved in the parental tasks and the time the child had lived with the
biological father was “exceedingly small.â€
(Id. at p. 786.) The appellate court noted that the biological
father had avoided “the constant parental-type tasks that come with having the
child in his own home––such as feeding and cleaning up after the minor,
changing her clothing bathing her, seeing to her naps, putting her to bed,
taking her for outings, playing games with her, disciplining her, and otherwise
focusing on the child.†(
avoided the parental-type tasks.
Mother’s uncontradicted statement was that during the overnight visits,
Robert did not change Lillian’s diaper and might have fed her one time. Nothing in the record shows that Robert fed
Lillian, changed her diapers or clothing, made sure that she took naps, or put
her to bed.
Robert points to
favorable evidence in the record to support his claim that he should be granted
presumed father status. He explains that
he immediately acknowledged his parental status and asked the juvenile court at
the detention hearing to find him to be Lillian’s presumed father. Moreover, he emphasizes that he repeatedly
asked the court throughout the dependency proceedings to grant him presumed
father status. Additionally, he
submitted photographs of Lillian with him, and some of the photographs included
Lillian’s paternal grandparents. He
stresses that he paid for some of Lillian’s food and diapers. Robert argues that the foregoing favorable
facts distinguish his situation from the parent In re Spencer W. (1996) 48 Cal.App.4th 1647, the case cited by the
agency in the trial court.
In In re Spencer W., supra, 48 Cal.App.4th 1647, the alleged father
failed to support the child, lived with child’s mother only while the mother
provided financial support to the alleged father, and demonstrated no interest
in the child while he was in jail. (
the facts in In re Spencer W. are
both similar and different from the facts in the present case. Robert has clearly displayed more interest in
Lillian than the father in In re Spencer
W. showed towards the child, but
he has not demonstrated that he has been involved in parental-type tasks. As already noted, mother stated that on the
few occasions that she stayed overnight at Robert’s mobile home with Lillian,
Robert did not change her diaper and she did not believe he fed her. On the one occasion that Robert visited
Lillian during the dependency proceedings, the social worker noted that Robert
failed to bring any essentials for the visit with the baby and that the
maternal grandparents provided a full diaper bag with the items
necessary to meet the baby’s needs. The
social worker
reported that Robert had never independently cared for Lillian.
Robert had minimal
contact with Lillian prior to her detention, and then had even less contact
with her after the detention. After
Lillian was detained in April 2012, Robert saw Lillian only once, on July 25,
2012. The social worker, Ross, stated
that Robert never contacted the agency to request visitation with Lillian until
after the dispositional hearing. Robert
did not appear at some of the dependency hearings, including the dispositional
hearing, and did not attempt to contact the social worker to inquire about
Lillian’s well-being. Maternal
grandfather testified that Lillian had been in the maternal grandparents’ home
since her birth, and Robert had not offered them any support or called asking
to see the baby.
Other than purchasing
some diapers and some food before Lillian was detained, Robert provided no
financial support for Lillian. Maternal
grandfather testified that Robert provided no financial support for Lillian.
Additionally, there is
no evidence that Robert helped mother in prenatal care. There is no evidence that he paid or
attempted to pay pregnancy and birth expenses.
Robert did not have his name placed on Lillian’s birth certificate.
The abovementioned
evidence amply supported the juvenile court’s findings that Robert did not meet
his burden of proof for establishing that he was entitled to presumed father
status under Family Code section 7611, subdivision (d).
Robert contends that
public policy supports a finding of presumed father status and relies on
139. Robert cites the following language
in the opinion: “Refusing to grant
presumed father status to a man such as appellant, where no other parental figure
is available to fill the gap, would serve only to punish the children by
depriving them of a second parent.†(
him presumed father status deprives Lillian of a father.
In In re J.O., supra, 178 Cal.App.4th 139, the trial court found that
the father had established his status as presumed father under Family Code
section 7611, subdivision (d), but that the presumption had been rebutted by
clear and convincing evidence that father had failed to provide financial
support to his children and had no contact with them in several years. (In re
J.O., at p. 146.) The appellate
court reversed and held that the man’s later failure to maintain contact or
provide support could not be the basis for rebutting the paternity presumption
under Family Code section 7611, subdivision (d). (In re
J.O., at p. 150.) In contrast, here,
Robert did not establish the paternity presumption under Family Code section
7611, subdivision (d) and the lower court never had to consider whether this
presumption had been rebutted.
policy supports the granting of Robert presumed father status in a situation,
like the present, where Robert has failed to establish the paternity
presumption under Family Code section 7611, subdivision (d).
Robert also cites Family
Code section 7570, subdivision (a) in support of his argument that public
policy demands that he be granted presumed father status. Robert quotes the following language in
Family Code section 7570, subdivision (a):
“There is a compelling state interest in establishing paternity for all
children†and “knowing one’s father is important to a child’s
development.†Robert ignores the
remaining language in this statute, which establishes that this provision is
concerned with the need to establish paternity as “the first step toward a
child support award, which, in turn, provides children with equal rights and
access to benefits, including, but not limited to, social security, health
insurance, survivors’ benefits, military benefits, and inheritance rights. Knowledge of family medical history is often
necessary for correct medical diagnosis and treatment.†(Fam. Code, § 7570, subd. (a).)
In the present case, the
DNA testing of Robert promoted the policy underlying Family Code section
7570. (See Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 123.) Family Code section 7570 does not suggest
that a biological father should be accorded the rights of a presumed
father. The very purpose of the Uniform
Parentage Act (Fam. Code, § 7600 et seq.) is “to distinguish those who have
demonstrated a commitment to the child regardless of biology and grant them the
‘elevated status of presumed [parenthood].’ â€
(E.C. v. J.V. (2012) 202
Cal.App.4th 1076, 1085.) Thus the public
policy in situations, such as the present, where the biological father has not
achieved presumed father status as defined in Family Code section 7611 and
“demonstrated an abiding commitment to the child and the child’s well-being†(
“biological†father’s paternal rights may ultimately be terminated in the
dependency process. (See, e.g.,
Cal.App.4th 586, 596.)
In the present case
substantial evidence in the record supports the lower court’s finding that
father did not establish presumed father status under Family Code section 7611,
subdivision (d). (See
213.) Granting Robert presumed father
status when he has not demonstrated a commitment to Lillian would not further
public policy.
D.
Robert Did Not Establish that He
Is a Kelsey Father
Robert contends that
he provided sufficient evidence to establish that he is a Kelsey father. Robert claims
that he promptly came forward to demonstrate a full commitment to his parental
responsibilities but was thwarted in his efforts by maternal grandfather and
the agency. He claims that the maternal
grandfather limited his contact with Lillian and the court ordered no
visitation at the dispositional hearing.
The record does not
support Robert’s claim that he is a Kelsey
father. Robert’s conduct both before and
after Lillian was detained supports the juvenile court’s conclusion that Robert
did not assume his parental responsibilities––emotional, financial, or
otherwise. As already discussed, Robert
did not offer any financial support, did not contact the agency social worker
to inquire about Lillian’s care or offer any support, and spent minimal time
with her.
The record does not support Robert’s claims that
the grandparents prevented him from assuming his parental
responsibilities. Firstly, he did not
demonstrate that he made any particular effort that was frustrated. Secondly, maternal grandfather picked Robert
up and brought him to the hospital to see Lillian when she was born. Robert did report that the maternal
grandfather had attacked him after ordering him to stay away from his daughter
and to get a job to support the baby, but mother claimed Robert’s allegations
against Lillian’s maternal grandfather were false. The
record does not establish that Robert ever asked the maternal grandfather
whether he could see Lillian. Nothing in
this record demonstrates that the maternal grandfather stopped Robert from
seeing Lillian or prevented him from carrying out his parental responsibilities
towards her. Instead, the record shows
that Robert never called the maternal grandfather to ask about the baby’s
welfare or to offer any assistance.
Robert also argues
that the agency and court thwarted his efforts because at the dispositional
hearing, which he did not attend, the court ordered no visitation between
Lillian and Robert. This argument is not
persuasive because Robert did not visit Lillian between the detention hearing
on April 23, 2012, and the dispositional hearing on June 14, 2012. At that time, there was no court order
preventing visitation. Not only did
Robert not visit Lillian during this period, he never contacted the agency to
request a visit. The agency tried
several times to reach Robert, but he never returned the phone calls.
The evidence in the
record abundantly supported the juvenile court’s finding that Robert was not a
Process Violation
Robert contends that the juvenile court violated
his due process rights because it waited until the dispositional hearing to
find that he was not the presumed father even though the court knew at the
detention hearing that he was the alleged father. Additionally, Robert claims that the court
did not make the JV-505 form available to him in a timely manner.
Section 316.2 requires the juvenile court at the
detention hearing, or as soon thereafter as practicable, to “inquire of the
mother and any other appropriate person as to the identity and address of all presumed
or alleged fathers.†(See
1311-1312.) California Rules of Court,
rule 5.635(h) provides: “If a person
appears at a hearing in dependency matter . . . and requests a judgment of
parentage on form JV-505, the court must determine: [¶]
(1) Whether that person is the
biological parent of the child; and [¶]
(2) Whether that person is the
presumed parent of the child, if that finding is requested.†(See also In
re Paul H. (2003) 111 Cal.App.4th 753, 760-761.) Thus “[d]ue process for an alleged father
requires . . . that the alleged father be given notice and ‘an opportunity to
appear and assert a position and attempt to change his paternity status.†(Id. at
p. 760.)
Here, the juvenile court did inquire about and
attempt to determine the parentage of Lillian at the detention hearings on
April 23 and April 24, 2012. On April
23, the court asked mother about Lillian’s parentage, and mother told the court
that she believed that Robert was Lillian’s father. She informed the court that she
had never married Robert and was not living with him when Lillian was
born. She also disclosed that Robert’s
name was not on Lillian’s birth certificate and that Robert had not signed
anything or acknowledged in any manner that Lillian was his child. The following day, on April 24, Robert
appeared with his counsel and Robert told the court that he was not on
Lillian’s birth certificate. He stated
that he did not know when Lillian was born but that he had held himself out as
her father. Robert acknowledged that
there was no court document showing that he held Lillian out as his child. Robert conceded that he had not paid any
child support and had only provided “minor necessities for the child.â€
The
juvenile court delayed ruling on Robert’s
request for presumed father until the dispositional hearing to permit Robert
more time to garner evidence to support his request. The language of section 316.2 specifies that
the court should inquire of the mother about the identity of the father “[a]t
the detention hearing, or as soon thereafter as practicable . . . .†There is no requirement that a determination
of biological paternity must be made at a particular time. Robert did not even complete the JV-505 form
until July 10, 2012. The court in the
present case made the determination of biological paternity once the DNA
testing was complete.
Robert relies on In re B.C., supra, 205 Cal.App.4th 1306, but this case is
unavailing. The court held in
paternity when the alleged father files a JV-505 Statement, requests genetic
testing to determine whether he is the dependent child’s biological father, and
declares that if he were found to be the biological father, he would meet the
paternal obligations. (
a determination of Lillian’s paternity.
We thus conclude that Robert had proper notice
and was given an opportunity to appear and present his evidence. He was accorded all of the notice and process
that was due.
Furthermore, even if Robert could establish that
the delay in ruling on his request until June 14, 2012, when the court denied
him presumed father status, violated his due process rights, this alleged error
was harmless. “ ‘We typically apply a
harmless-error analysis when a statutory mandate is disobeyed, except in a
narrow category of circumstances when we deem the error reversible per se.’
†(In
re Kobe A. (2007) 146 Cal.App.4th 1113, 1122.) Although Robert was an alleged father only,
the juvenile court nonetheless appointed him counsel at the detention hearing
on April 23, 2012. Robert was provided every
opportunity to show that he was a presumed father, but could not do so. Robert was able to participate in the
dependency proceedings; he cannot demonstrate how the delay in ruling on his
presumed father request hurt him. To the
contrary, the delay benefitted him as it provided him more time to establish a
parental relationship and commitment to Lillian.
When urging this court to conclude that the
delay was prejudicial to him, Robert relies on In re Paul H., supra, 111 Cal.App.4th 753. In In
re Paul H., the appellate court reversed the judgment terminating parental
rights after concluding that the alleged father did not have appointed counsel
and was not afforded the opportunity to request court-ordered paternity testing
under section 316.2. (
761-762.) This case does not benefit
Robert because, unlike the situation in In
re Paul H., Robert had an appointed attorney and the court ordered DNA
testing.
Robert claims that an earlier ruling by the
juvenile court would have entitled him to visitation with Lillian earlier and
then he would have been offered reunification services at the dispositional
hearing. This argument is completely
without merit. As already stressed,
there was no order preventing Robert from visiting Lillian before the
dispositional hearing. Yet, he neither
visited Lillian nor contacted the agency to make any request to visit Lillian
or inquire about her welfare. Indeed, by
the time the court made its first ruling on Robert’s request for presumed
father status, at the dispositional hearing, there was almost no evidence to
support presumed father status and Robert did not even attend that
hearing. There is absolutely nothing in
this record to show that Robert would have behaved any differently had the
juvenile court denied his request for presumed father status earlier at the
detention hearing. On this record, there
is no reasonable probability that Robert could have obtained a different result
if the juvenile court had ruled earlier on his request for presumed father
status.
We conclude that Robert was provided ample
opportunity to participate in the proceedings and to establish his claim of
presumed father status; he was accorded all of the notice and process that he
was due. Furthermore, any alleged due
process violation was harmless.
DISPOSITION
In
the appeal (A136734), the juvenile court’s order denying Robert presumed father
status is affirmed. In the writ
proceeding (A137251), the petition challenging the juvenile court’s order
setting a section 366.26 hearing is denied on the merits. (Kowis
v. Howard (1992) 3 Cal.4th 888, 894 [barring later challenge by
appeal].) Our decision regarding the
writ is final as to this court immediately.
(Calif. Rules of Court, rule 8.490(b)(3).) This court’s temporary stay of the section
366.26 hearing is dissolved.
_________________________
Lambden,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
to the Welfare and Institutions Code.
a party to this writ proceeding or appeal.
