In re Zion D.

Filed 10/27/06 In re Zion D. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

PETITION for Extraordinary Writ. Petition granted.

Murray S. Berns for Petitioner.

Raymond G. Fortner, Jr. and Michel Eisner, County Counsel, Larry Cory, Assistant County Counsel and Fred Klink, Deputy County Counsel, for Real Party in Interest.

INTRODUCTION

Petitioner Leo Phillip I. was the biological father of Zion D. The dependency court denied petitioner’s request for presumed father status and family reunification services and set the proceeding for a permanency planning hearing. Petitioner filed a petition for extraordinary writ review. (Cal. Rules of Court, rule 38.1.) We grant the writ.

FACTUAL AND PROCEDURAL BACKGROUND

Zion D. was born April 13, 2006. While in the hospital the next day, Zion’s mother, S.D., had trouble awakening him so she rubbed ice chips all over Zion’s body. The nursing staff placed Zion under warming lights to bring his temperature back to normal. This incident alarmed the hospital staff, who called the Department of Child and Family Services (DCFS). A social worker interviewed mother, who admitted to a history of drug abuse, the removal of other children from her care, and having been ordered to live in a drug rehabilitation center due to a probation violation. Mother also stated that petitioner was the father of Zion, but petitioner’s whereabouts were unknown.

On April 20, 2006, a petition was filed alleging mother had a history of substance abuse, endangering Zion’s physical and emotional health and safety and placing him at risk of serious harm. The petition also alleged that Zion’s siblings were prior dependents of the juvenile court, with whom mother had failed to reunify. The petition contained no allegations against petitioner.

A detention hearing was held on April 20, 2006. Zion was detained in foster care. Petitioner was found to be the alleged father and DCFS was directed to try and locate him.

On June 5, 2006, petitioner appeared in court. A June 5, 2006, DCFS report indicated petitioner had told a social worker the following: He was almost 39 years old, had graduated from high school, had no history of drug or alcohol abuse, had taken some courses at a junior college, had been arrested for illegally using a motor vehicle and drinking in public, and when he was 18 he had gone to the California Conservation Corps. Petitioner further stated that he had had a variety of jobs, had last worked when he was 33 years old, was homeless, would be applying for general relief, and had other children. Petitioner requested a paternity test.

The June 5, 2006, DCFS report also indicated that mother had told the social worker the following: Mother had an on and off again relationship with petitioner, who had bought Zion a playpen/bassinet, some clothes, and a car seat. Further, on May 7, 2006, petitioner had bought $30 worth of diapers.[1]

On June 5, 2006, the trial court appointed counsel for petitioner and ordered a paternity test. Petitioner was found to be the alleged father and was to have monitored visitation. Zion was placed with relatives. The trial court noted that there were no allegations against petitioner in the petition.

On July 24, 2006, mother and petitioner appeared for a scheduled mediation. The petition, as amended, was sustained with no allegations of wrongdoing by petitioner. Petitioner and mother entered into a mediation agreement. A July 21, 2006, report of the social worker indicated that petitioner had not taken the paternity test because he did not know the location of the laboratory. The social worker gave petitioner this information. The trial court ordered that petitioner was to receive no reunification services due to his status as an alleged father. However, he was to have monitored visitation.

On August 24, 2006, both parents appeared with their respective counsel for a contested disposition hearing. The trial court denied reunification services to mother. With regard to petitioner, DCFS reported that the laboratory report indicated petitioner was Zion’s biological father. Petitioner’s counsel stated that petitioner had not visited Zion because he did not want to bond with Zion if he was not his biological father. However, now that it was shown that he was the biological father, petitioner wanted to step forward and wanted to play an active role in Zion’s life. Petitioner sought reunification services.

The trial court stated that petitioner’s failure to have any contact with Zion showed he did not have a major interest in reuniting with the child. Petitioner then addressed the court, stating, “I kind of understand where the situation is. My thing is [that] I’m not going to legally be pushed, ramrodded to do something if I’m not the father. Now, I am the father, and it has been proven to me. Give me the opportunity. I did it in the beginning. Give me the opportunity to be there for my son.”

The trial court stated that visiting Zion would not have cost petitioner anything. The trial court further stated, “the law says that if you wanted to be a father, you needed to step up right away[. Say,] I don’t know if I’m the father or not, but I’m going to visit this kid and get a connection with him. And if I’m not the father, I’ll walk away. If I am the father, then he will be in my life. That didn’t happen. You waited until you got tested. And that was your choice, but when you make that kind of a choice, this court and the cases have indicated that this is not the kind of father that should be involved in a baby’s life.”

Over objection, the trial court ordered that no reunification services were to be provided to petitioner pursuant to Welfare and Institutions Code section 361.5, subdivision (a). Zion was declared a dependent of the court. The case was set for a permanent planning hearing on December 20, 2006, pursuant to Welfare and Institutions Code section 366.26.

Petitioner has filed a petition for extraordinary writ contending that he was entitled to reunification services. We agree.[2]

DISCUSSION

Petitioner must be granted presumed father status and awarded reunification services.

“In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) “A man, such as a stepfather, who has assumed the role of parent, is a ‘de facto father.’ A man who may be the father of the dependent child but has not been established to be the natural or presumed father is an ‘alleged father.’ A man who has been established to be the biological father is a ‘natural father.’ A man who has held the child out as his own and received the child into his home is a ‘presumed father.’ A ‘natural father’ can be, but is not necessarily, a ‘presumed father’ and a ‘presumed father’ can be, but is not necessarily, a ‘natural father.’ “ (Id. at p. 801, fns. omitted.)

In the dependency context, biological fathers must achieve presumed father status, as only presumed fathers are entitled to reunification services and custody. (In re Eric E. (2006) 137 Cal.App.4th 252, 258; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228.)

Welfare and Institutions Code section 361.5 delineates who can receive services. Subdivision (a) of section 361.5 provides in part, “[W]henever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians. Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.” (Italics added; see also; Cal. Rules of Court, rule 1456(f)(3).)

Thus, being a biological father does not automatically entitle a man to reunification services. Rather, the man must become a presumed father. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) However, “the best interest of the child standard cannot be applied to deny a father reunification services. [Citation.]” (In re Eric E., supra, 137 Cal.App.4th at p. 259.) That standard is applied when the trial court is exercising its discretion under the second sentence of Welfare and Institutions Code section 361.5, subdivision (a) as quoted above. (In re Joshua R. (2002) 104 Cal.App.4th 1020, 1026.)

To be adjudged a presumed father, the man must do what is appropriate under the circumstances to step forward and assume a parental role. “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise -- his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child’s well-being is presumptively best served by continuation of the father’s parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.” (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849, fn. omitted.) “The focus is on whether the natural father ‘has done all that he could reasonably do under the circumstances‘ to demonstrate his commitment to the child. [Citations.]” (In re Andrew L. (2004) 122 Cal.App.4th 178, 191.) “ ‘[U]p until the time the [Welfare and Institutions Code] section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.’ [Citation.]” (In re Zacharia D., supra, 6 Cal.4th at p. 447; see also, In re Andrew L., supra, at p. 191.)

We must determine if petitioner promptly attempted to fulfill a parental role, according to his abilities and circumstances. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849.)

Here, as soon as petitioner learned that Zion was born, he purchased items needed for his care. He bought diapers, a playpen/bassinet, some clothes and a car seat. Although wealthier fathers might have expended more on a new born, these purchases were commensurate with petitioner’s financial ability and demonstrated a concern for the child, even at a time when paternity had not been established. Once petitioner learned of the dependency proceedings, he appeared at each court date, further demonstrating a concern for Zion and a willingness to care for Zion. Not knowing if Zion was his child, petitioner asked for a paternity test. Petitioner came to court again the next month, and took the paternity test after being given the location for the laboratory. Yet, a month later, the trial court denied him reunification services.

Given petitioner’s limited resources, he acted as promptly as possible. This is not a situation in which a minor was in the system for months. This is not a situation in which a father was given numerous opportunities to connect with his child, and failed to do so. This is not a situation in which a child had formed a bond to another man while the natural father waffled as to his commitment to the child. Rather, petitioner stepped up, asked for a paternity test, and asked for reunification services so that he could meet all of his parental responsibilities-emotional, financial, and otherwise.

We recognize the importance of swift action by the dependency court so that children do not linger in the system. We also understand the trial court’s concern that petitioner had not visited the child. However, petitioner’s desire to wait for the paternity test before building a strong bond with Zion is understandable, and did not delay the proceedings. The paternity test was ordered on June 5, 2006, and petitioner’s requests to be a presumed father and to have reunification services were denied just two and one half months later. “Parents have a fundamental interest in the care, companionship, and custody of their children. [Citation.]” (In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) There were no allegations in the juvenile dependency petition charging that petitioner abused Zion. Petitioner has a constitutional right to parent his children. (In re Julia U. (1998) 64 Cal.App.4th 532, 544.) With reunification services, petitioner will have the opportunity to establish a relationship with Zion and to provide for Zion’s care. Petitioner must take the opportunity given to him with reunification services to bond with his child and prove he is capable of caring for Zion.

DISPOSITION

Let a writ issue directing respondent juvenile court to (1) vacate its August 24, 2006, order denying petitioner presumed father status and denying him reunification services and setting the matter for a Welfare and Institutions Code section 366.26 permanency planning hearing, and (2) issue a new order establishing petitioner as presumed father and granting him six months of reunification services.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] Mother also informed the social worker that while she was pregnant, she and petitioner had a physical altercation that led to petitioner’s arrest. The record indicates DCFS intended to amend the petition to add allegations relating to this incident. However, the petition was not amended and there is no other evidence to support the statements made by mother.

[2] Mother is not a party to this proceeding.