In re T.B.

Filed 10/6/06 In re T.B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman, II, Judge.

Gino deSolenni, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant Troy B., the alleged father of B.B. and T.B., contends the juvenile court erred when it denied his request, made at the six-month review hearing, to elevate him to presumed father status. We agree with appellant’s contention and will reverse and remand for further proceedings.

BACKGROUND

Twelve-year-old B.B. and thirteen-year-old T.B. were placed in protective custody on July 28, 2005, after Cynthia C. (Mother) left them at a friend’s house, claiming she had to serve a two-week jail term. When Mother failed to return for the children, the friend dropped the children off at the home of their maternal grandparents. Prior to that time, Mother and the children had been homeless from January through June of 2005. They lived in a vehicle belonging to Mother’s boyfriend, Hector S. They bathed and washed their clothing with a water hose. The children dressed for school behind a family friend’s home. Additionally, around May 2004, Mother smoked marijuana in the presence of the children, and on June 3, 2004, she pled guilty to misdemeanor driving under the influence of drugs and/or alcohol. The children were taken into protective custody after the grandparents informed the emergency social worker they were unable to care for the children.

On August 1, 2005, the Kern County Department of Human Services (the Department) filed petitions alleging the minors were dependent children under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petitions identified appellant as the children’s alleged father.

The social studies prepared for the detention hearing (detention report) reflected that the children’s grandparents identified appellant as the children’s father. They indicated he could not care for the children because he lived in Sacramento and was “on the run.” Both children informed the social worker that their grandparents had told them their father was unable to take care of them because he was on the run from “the cops” or “the man.” The children reported that they had last seen their father over a year ago. T.B. stated that he lived with his mother, father, and sister until his father left his mother for another woman.

On July 29, 2005, the social worker contacted appellant by telephone. Appellant stated he left Mother a few years ago. He thought she and the children were doing fine until he became aware of their current situation after speaking with the children’s grandmother. Appellant stated he was not able to care for his children at that time. He explained that he believed there was a warrant for his arrest for absconding from Bakersfield to Sacramento. Appellant provided the social worker with a mailing address. He also completed a parent questionnaire, in which he claimed no Indian or Eskimo heritage. The social worker notified appellant of the date, time, and location of the detention hearing. Appellant responded that he was not sure if he would be attending the hearing, due to the fact that, if he were arrested, he would go back to jail for a number of months.

The detention report reflected that appellant has a fairly lengthy criminal history, spanning from 1989 to 1999.

The matter came on for the detention hearing on August 2, 2005, before a senior referee. Neither Mother nor appellant, who were duly notified, made an appearance at the hearing. The referee found that continuing the children in Mother’s custody would be contrary to their well-being.

An uncontested jurisdiction/disposition hearing was held on August 30, 2005. Again, neither Mother nor appellant made an appearance, and the matter was submitted on the petition. The referee found the allegations to be true, and ordered that reunification services be provided to Mother, and ordered Mother to undergo counseling and random drug testing. Pursuant to Welfare and Institutions Code section 366.21, subdivision (e), the matter was set for a six-month review hearing on February 28, 2006.

The jurisdiction and disposition reports contained additional information regarding appellant. The social worker reported that on August 15, 2005, she tried to contact appellant’s parole officer. After being informed the officer was on vacation, she asked staff to check if there was a warrant of any kind for appellant. After checking, staff confirmed appellant was on parole but stated there currently was no warrant for appellant. Appellant also reported to the social worker that he has been married twice. His second marriage was to Mother, and took place on February 11, 1991, or February 11, 1992. With Mother, he fathered two children, T.B. and B.B.

On February 28, 2006, the day of the six-month review hearing, appellant filed a Judicial Council form JV-505, statement regarding paternity, stating that he believed he was the father of the children. The same day, appellant filed parental notification of Indian status, in which he checked the box indicating he may have Indian ancestry.

The minutes of the six-month review hearing reflect that the juvenile court conducted a “paternity inquiry of alleged father Troy [B.]” but indicate no particular finding was made. However, the reporter’s transcript of the hearing reflects that appellant’s counsel requested that the juvenile court elevate appellant’s status from alleged father to presumed father, and that the juvenile court received testimony from appellant on the subject, before denying the request.

Appellant testified that he was the children’s father, and identified their birth dates, which were in March 1992 and June 1993. According to appellant’s testimony, at the time of the children’s births, he was legally married to Mother. The date of their marriage was February 11, 1992. They married about a month before T.B.’s birth. At the time T.B. was conceived, appellant was having sexual relations with Mother. When asked whether he lived with T.B. after T.B. was born, appellant responded that they had all lived together the “whole time.” After T.B.’s birth, appellant told his friends and family that T.B. was his son. Appellant lived with Mother and T.B. until about five or six years ago.

Appellant also lived with B.B. after her birth in 1993. He believed that at the time, they were all living with appellant’s mother. Appellant, Mother, and the children lived together until about five or six years ago. As far as he knew, appellant was still married to Mother, though she currently used her maiden name. When further questioned by the juvenile court, appellant stated he and Mother got married in Las Vegas.

With respect to the issue of Indian status, appellant testified that he is “[s]upposed to be a fourth Cherokee.” Appellant learned this from his mother, but he did not know which of the three federally-recognized Cherokee tribes he was related to, or how far back one would have to go on his mother’s side of the family to find full members of the tribe.

Appellant’s counsel requested that appellant be elevated to presumed father status. The attorney noted that appellant’s testimony was consistent with information in the detention and jurisdiction reports. Appellant’s counsel also indicated that appellant’s only intention in seeking presumed father status was to be able to receive “basic limited visitation with the children,” such as monthly telephone contact at the children’s discretion.

Counsel for the Department questioned whether appellant had invoked the proper procedure to obtain a determination of presumed fatherhood, but then acknowledged that if appellant’s testimony were accepted without any further corroboration, it “clearly” would meet the test for presumed father status.

The juvenile court noted that appellant’s testimony appeared to be corroborated by T.B.’s statements in the detention report. However, children’s counsel took the position that additional corroborating evidence, such as a marriage certificate or identification of appellant as the father by one of the children, was needed to elevate appellant to presumed father status. Although children’s counsel provided no legal support for this position, the juvenile court accepted it. The record discloses the following relevant discussion on the issue:

“[CHILDREN’S COUNSEL]: My only question about the detention statements from [T.B.] is there’s no name. And I will be honest with you. I talked to these two kids yesterday. I had no idea that [appellant] was going to appear. So I didn’t ask them any questions about the father. And I do recall at the beginning of this case talking with the social worker at length and her referring to the father and her belief that this was the father. But I don’t have any further information or any documentation. My problem is I am having a little trouble making the jump without the marriage certificate or at least one of the kids identifying [T.B.] by name.

“Your Honor, if I may suggest, since father seems to have possibly have the marriage certificate at home, to have it faxed down and then come in on an ex parte. Once that can be conclusively brought in as demonstration there is an actual valid marriage, then we would have no problem of elevating him to presumed father status.

“[THE COURT]: Then take up visitation at that time.

“[CHILDREN’S COUNSEL]: Well, yeah, presumed father status and establish visitation via ex parte, not having to go through the formal three weeks for a [Welfare and Institutions Code section ] 388 or anything like that. So as soon as the documentation is made available then we could have it all done quickly. Because I don’t believe anybody really wants to prevent him from having contact. It’s just verifying the proper status.

“[THE COURT]: What is your response to that ?

“[APPELLANT’S COUNSEL]: [Appellant] indicates that the marriage certificate was lost, I think you said. So it would have to be trying to obtain it from Las Vegas. So I understand [counsel]’s position. And we will accept whatever determination the Court makes. But I guess, for the record, we will make the request to elevate him to presumed status based on the evidence and information you have today.

“[THE COURT]: All right. The Court’s going to indicate a tentative that I don’t find there is a sufficient basis to elevate him to presumed status. The Court’s going to want further corroboration including some -- either some evidence from the children or some evidence regarding the marriage certificate.

So I am going to deny the request to elevate him to presumed status. I am going to require the father to go ahead and do some further leg work to gather the evidence that would be helpful clarifying this issue, get the matter back before the Court either ex parte or on a 388.”

The juvenile court found Mother had made no progress in her case plan, and ordered the continuation of reunification services to her. The parties agreed that, because appellant was being treated as an alleged father, the court was not required, at that time, to make any findings regarding appellant’s Indian status. Based on its denial of appellant’s request to elevate him to presumed father status, the juvenile court also denied appellant’s request for visitation with the children, without prejudice to appellant “putting the matter back on either an ex parte basis or 388 with additional corroborating evidence .”

DISCUSSION

Dependency law recognizes three types of fathers: presumed, alleged and biological. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15; see Welf. & Inst. Code, § 361.5; compare In re Crystal J. (2001) 92 Cal.App.4th 186, 190 [recognizing a fourth category of “de facto fathers“ for those who have assumed the role of parent on a day-to-day basis].) A presumed father is a man who meets one or more statutorily specified criteria. (Fam. Code, § 7611.) A biological 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., supra, 6 Cal.4th at p. 449, fn. 15.) An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. (Ibid.)

In dependency proceedings, a man’s status as a presumed father is critical. (In re O. S. (2002) 102 Cal.App.4th 1402, 1410.) Alleged fathers have fewer rights than presumed fathers and are not entitled to custody, reunification services, or visitation. (In re Zacharia D, supra, 6 Cal.4th at pp. 448-449.) One who claims he is entitled to presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)

The juvenile court here had an obligation to inquire and make a determination as to paternity. Welfare and Institutions Code section 316.2, subdivision (a) states that at the detention hearing, or as soon thereafter as is practical, “the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers.” That code section further mandates that the juvenile court inquire and determine whether any man qualifies as a presumed father under Family Code section 7611. (Welf. & Inst. Code, § 316.2, subd. (a)(7).)^[1] Further, after making this inquiry and determination, the juvenile court is required to note its findings for the record. (Welf. & Inst. Code, § 316.2, subd. (f).) Here, the juvenile court found there was an insufficient basis to elevate appellant to presumed father status. Although the court did not make an affirmative factual finding that appellant was not the children’s presumed father, the Department concedes that appellant has standing to appeal because he had a legally cognizable interest that was injuriously impacted by the court’s action. We agree.

Family Code section 7611 contains six presumptions that qualify a man for presumed father status.^[2] Appellant qualified as a presumed father under Family Code section 7611, subdivision (a) because he was married to the children’s mother at the time of their birth. In conducting a paternity inquiry, the juvenile court received testimony from appellant, stating under oath, that the children were born during his marriage to their mother. The children share appellant’s last name, and although they did not specifically mention appellant by name, it is clear from the detention report that they were referring to the same person their grandparents specifically identified as appellant and as their father. Moreover, the Department failed to identify any other alleged father. Substantial evidence of appellant’s presumed father status was provided to the juvenile court in the social studies and appellant’s unchallenged testimony.^[3]

Contrary to the Department’s suggestion, there is no support in the record for an inference that the juvenile court found appellant’s testimony not to be credible. All the parties and the juvenile court essentially treated appellant as if he were the children’s biological father. The court’s denial of presumed father status was based on the erroneous position, advanced by children’s counsel, that further corroborating proof, in the form of a marriage certificate or the children specifically naming appellant as their father, was required. There is no legal support for this position. The juvenile court “may make its determination of parentage or nonparentage based on the testimony, declarations, or statements of the alleged parents.” (Cal. Rules of Court, rule 1413(e)(2).) Substantial evidence supporting appellant’s presumed father status was before the court at the six-month review hearing and no further evidence was required.

Nor do we find any legal support for the Department’s interpretation of Welfare and Institutions Code section 316.2, subdivision (a), to the effect that Mother’s absence from the six-month hearing and during the juvenile court’s inquiry into paternity precluded a determination of paternity by the juvenile court. The applicable court rule was recently amended to provide: “At the initial hearing on a petition filed under section 300, 601, or 602, and at hearings thereafter until or unless parentage has been established, the court must inquire of the child’s parents present at the hearing and of any and all presumed parents of the child.”^[4] (Cal. Rules of Court, rule 1413(b), emphasis added.) The new rule was in effect at the time of the six-month review hearing in this case, and there is no other rule or statute expressly requiring the mother’s presence at a hearing for a determination of presumed fatherhood to be made.

We cannot conclude the juvenile court’s failure to elevate appellant to presumed father status was harmless. Only a presumed father has a right to custody and a right to reunification services as necessary to regain custody of a dependent child. (In re. Zacharia D., supra, 6 Cal.4th at p. 451.) Because the juvenile court treated appellant as an alleged father and not a presumed father, it did not reach the questions of visitation, or Indian status. These are issues for the juvenile court’s consideration on remand.^[5]

DISPOSITION

The juvenile court’s order denying appellant presumed father status is reversed, and the matter is remanded for further proceedings consistent with this opinion.

_____________________

HILL, J.

WE CONCUR:

_____________________

HARRIS, Acting P.J.

_____________________

WISEMAN, J.

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^[1] In addition, California Rules of Court, rule 1413(h)(2) provides: “If a man appears at a hearing in a dependency matter and requests a finding of paternity on form JV-505 the court must determine whether he is the biological father of the child.” Although appellant filed a JV-505 form, his counsel indicated that he did so in order to seek a determination of presumed fatherhood, as opposed to biological fatherhood, explaining, “[t]he procedure we have always used, rightly or wrongly, is the statement of paternity.” Because the court had an independent obligation to inquire and make a determination concerning paternity, we need not address whether appellant used the proper procedure to raise the issue.

^[2] Family Code section 7611 provides: “A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:

(a) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.

(b) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.

(2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.

(c) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

(1) With his consent, he is named as the child’s father on the child’s birth certificate.

(2) He is obligated to support the child under a written voluntary promise or by court order.

(d) He receives the child into his home and openly holds out the child as his natural child.

(e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child’s father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.

(f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.” (Emphasis added.)

^[3] We need not address whether appellant presented sufficient evidence to establish he was a presumed father under any other statutory provision, since qualification under one provision suffices. Accordingly, we do not reach the Department’s argument that appellant failed to establish he was a presumed father under Family Code, section 7611, subdivision (d) (“He receives the child into his home and openly holds out the child as his natural child.”) because he did not present evidence he supported the children financially and because his testimony was that they were living with his mother, or that he failed to establish the conclusive presumption of Family Code section 7540 (“[T]he child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”) was applicable because appellant did not provide evidence he was cohabitating with Mother at the time the children were conceived.

^[4] Former California Rules of Court, rule 1413(b) provided: “At the initial hearing on a petition filed under section 300, 601, or 602, and at hearings thereafter until or unless paternity has been established, the court shall inquire of the child’s mother and of any other appropriate person present as to the identity and address of any and all presumed or alleged fathers of the child.”

^[5] Notwithstanding the Department’s suggestions to the contrary, appellant did not invite error with respect to, or waive the issue of, the necessity of giving notice to the tribes under the Indian Child Welfare Act (ICWA), by correctly conceding, at the six-month review hearing, that the ICWA does not apply to alleged fathers.