In re Katelynn E.

Filed 6/18/07 In re Katelynn E. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.

William Hook, under appointment by the Court of Appeal, for Minor.

Appellant Michael S. (father) is the father of the now five-year-old child, Katelynn E. Father challenges the juvenile courts denial of his Welfare and Institutions Code section 388^[1]petition for modification and the subsequent termination of his parental rights to Katelynn. Father argues that the courts orders are tainted by extrinsic fraud perpetrated by Katelynns mother (mother) when she failed to identify father as the childs father until one year into the dependency. This fraud, father argues, prevented father from participating in the proceedings, and in Katelynns life, until it was too late for him to obtain custody of the child.

Facts and Procedure

In early May 2005, Katelynns three-month-old brother was brought to the hospital for choking/gagging and failure to thrive. The infant was found to have a subdural hematoma, which hospital staff suspected resulted from abuse. Mother and her husband both admitted to shaking the infant, who was born two months premature, when he would not stop crying.^[2]Katelynn was taken into protective custody and placed in a foster home.

At the detention hearing held on May 5, 2005, mother answered no when the juvenile court asked her if she knew the identity or whereabouts of Katelynns father.^[3] The court ordered Katelynn detained in foster care. Her brother was placed in the same foster care home when he was discharged from the hospital. The brother made great strides in recovering from his injuries and failure to thrive, but was considered medically fragile, required feeding every two hours around the clock, and had numerous doctor appointments.

The jurisdiction/disposition hearing was held on July 28 and 29, 2005. Mother did not contest the allegations of serious physical harm, failure to protect, and severe physical abuse of a child under age five. ( 300, subds. (a), (b) & (e).) The court granted reunification services to mother. Mother requested that the two children be placed with mothers best friend, Tara R., who was 18 years old, married to a U.S. Marine, and lived with her parents.^[4]However, after an extended hearing during which the juvenile court heard testimony from the social worker, Tara R., her husband and her parents, and the childrens maternal great-aunt, the juvenile court placed the children with the maternal great-aunt, who was 27 years old, married, and has two young children of her own.

During the social workers monthly visit with the children on November 28, 2005, the great-aunt stated that she was no longer able to care for the children, had their belongings in the car, and did not intend to return home with them. The great-aunt stated that she was sick, did not yet have a final diagnosis, but believed it could be MS or Lupus. The social worker telephoned Tara R., who agreed to care for the children and picked them up the same day. The juvenile court approved placement with Tara R.

At the six-month review hearing held on January 25, 2006, the juvenile court continued mothers reunification services, despite her lack of progress. The court also authorized the Department of Childrens Services (DCS) to evaluate maternal relatives in Alabama for possible placement.

On June 20, 2006, mother e-mailed the social worker, apparently in anticipation of Tara R. planning to file for de facto parent status. Mother stated that she was willing to help find her childrens birth fathers to stop the ploy to steal my children from me and my family. Mother named father as Katelynns father, stating I was living with him and his mom in Texas for 3 months at the time Katelynn was conceived.

On June 28, 2006, Tara R. and her husband filed a request for de facto parent status. At the 12-month review hearing held on June 29, 2006, the juvenile court terminated mothers reunification services, continued visitation, and set a section 366.26 hearing to determine a permanent plan for the children for October 6, 2006. The court granted Tara R.s de facto parent motion.

DCS initiated an absent parent search for father on June 22, 2006. On July 19, DCS sent notice of the section 366.26 hearing to father at three different addresses in Texas. On August 7, 2006, father contacted DCS and asked for a paternity test. On August 10, 2006, the juvenile court held a nonappearance review hearing at which it appointed counsel for father. DCS reported that father lived in Texas with his wife and two children and wanted to assume custody of Katelynn if it was confirmed that he was her father. On August 22, 2006, the juvenile court ordered expedited paternity testing.

In the section 366.26 report filed September 22, 2006, the social worker reported her initial telephone conversation with father as follows. Father stated he met mother while he was a Marine stationed in Southern California. Mother was 14 years old at the time, but she told him she was 18. Father took mother to Texas to live with him and his mother, where mother became pregnant and then told him she was 17. Father learned mothers true age when he spoke with her own mother over the telephone. Father then sent mother back to California via 1-800-Runaway. Father traveled to California to inquire about the baby, but mother told him she would press charges against him if he interfered. Father went back to Texas and had no further contact with mother or Katelynn. He was then dishonorably discharged from the Marines.

The social worker also reported that Tara R. had placed four-year-old Katelynn in therapy in June 2006 because of emotional issues stemming from being placed in one foster home in May 2005, moving to live with her great-aunt in August 2005, and again being moved into Tara R.s care in November 2005. The social worker reported that the two children were bonded to each other and to Tara R., and recommended the siblings not be separated from each other. The social worker could not make a recommendation on a permanent placement for the children because DCS had not yet evaluated Tara R.s home and the respective states had not yet completed the interstate evaluation process on maternal relatives from both Illinois and Alabama who had requested placement.

The section 366.26 hearing was continued to November 16, 2006. In an addendum report filed November 2, 2006, the social worker reported that fathers paternity test had come back positive.

On November 9, 2006, father filed a form JV-180, Request to Change Court Order, also known as a section 388 petition for modification. Father asked the juvenile court to change the disposition order, cancel the section 366.26 hearing and place Katelynn with him on family maintenance. In the petition, father stated that he went AWOL (Absent WithOut Leave) from the Marines to take Katelynns mother to Texas because she said she was afraid to go back to her abusive father. He also stated that he had her sent back to California once he knew her real age. Father said that he visited mother once while she was in juvenile hall and they exchanged phone calls and letters before Katelynn was born. Father emphasized that mother eventually told him the child was not his and that he should stop contacting her or she would have him prosecuted for statutory rape. Father argued that he had been denied the opportunity to participate in the dependency proceedings because he had received no notice of any hearings until August 2006, at which time he promptly indicated his interest in raising Katelynn. In an addendum report filed November 13, 2006, the social worker recommended that parental rights be terminated and the children be adopted by Tara R. and her husband.

Father traveled from Texas to attend the section 366.26 hearing set for November 16, 2006. However, the court found that the section 388 petition had been filed too late to allow all the parties to respond. The court set a hearing for the section 388 petition only for December 7, 2006. On that date, the juvenile court denied fathers petition because he did not meet the standards set forth in In re Zacharia D. (1993) 6 Cal.4th 435. At the section 366.26 permanent plan hearing held on January 4, 2007, the juvenile court terminated all parental rights and selected adoption with Tara R. and her husband as the permanent plan. This appeal followed.

Discussion

1. Waiver

Father argues that the juvenile courts orders denying his section 388 petition and later terminating his parental rights were infected with external fraud perpetrated by mother, and so the orders should be vacated. However, as DCS points out, father has waived this issue by waiting to raise it until this appeal. As we stated in a previous dependency case where the parents waited until the appeal to assert extrinsic fraud by the Imperial County Department of Social Services, We see no reason to deviate from the usual rule that when a parent does not raise an issue in the trial court, he or she is precluded from raising the issue on appeal. [Citation.] That is particularly true when, as here, the issue requires a finding of fact. (See Guido v. Koopman (1991) 1 Cal.App.4th 837, 843 [2 Cal.Rptr.2d 437] [The existence of fraud is always a question of fact.].) (In re Joshua G. (2005) 129 Cal.App.4th 189, 197-198, citing In re S.B. (2004) 32 Cal.4th 1287, 1293, and Guido v. Koopman.) Thus, we decline to address this exact issue.

2. The Court Did Not Abuse Its Discretion in Denying Fathers Petition for Modification

A parent may petition the court under section 388 to modify an order of the juvenile court, upon a prima facie showing that either circumstances had changed or new evidence existed, and that the modification would be in the best interest of the child. (In re Andrew L. (2004) 122 Cal.App.4th 178, 190.) Here, the court granted father a hearing on his petition.

Upon the hearing, father bore the burden of showing by a preponderance of the evidence that circumstances had changed and that a change in the courts orders was in the childs best interest. (In re Andrew L., supra, 122 Cal.App.4th at p. 190.)

A. Presumed Father Status

A presumed father, but not a biological father or alleged father, is entitled to reunification services and custody of the child. (In re Zacharia D., supra, 6 Cal.4th at pp. 439, 448-449.) Family Code section 7611, subdivision (d), permits a man to become a presumed father if he has received the child into his home and openly held out the child as his own. Sometimes, it is not possible for a father to actually receive the child into his own home, as when the mother prevents it, or if the child has been made a dependent of the juvenile court in the custody of a social services agency. (In re Jerry P. (2002) 95 Cal.App.4th 793, 807.) In such a case, an unwed father may nevertheless become a presumed father if he makes a sufficient, timely, and full commitment to his parental responsibilities, including emotional, financial and other modes of support. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.)

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 Andrew L., supra, 122 Cal.App.4th at p. 191; In reZacharia D., supra, 6 Cal.4th at p. 450; In re Julia U. (1998) 64 Cal.App.4th 532, 540-541.) In other words, it is a denial of due process to deny presumed father status, and reunification services, based solely on the best interest of the child prong of the analysis. (See In re Julia U., supra, at pp. 538-539.)

In determining whether a biological father has demonstrated such a commitment, [t]he fathers conduct both before and after the childs birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as mother will allow and his circumstances permit. . . . A court should also consider the fathers public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. (In re Zacharia D., supra, 6 Cal.4th at p. 450, fn. 19, citing Adoption of Kelsey S., supra,1 Cal.4th at p. 849, original italics.)

Here, the juvenile court concluded that father should not be treated as a presumed father under In re Zacharia D., and that it would not be in Katelynns best interest to be placed with him. We review these conclusions to determine whether they are supported by substantial evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.)

The evidence supporting the juvenile courts conclusion that father did not promptly and sufficiently assume his parental responsibilities to the best of his ability under the circumstances is as follows. First, father provided no evidence whatsoever that he ever provided any support to mother during her pregnancy or after Katelynns birth. Father and mother did live with fathers own mother during the first months of her pregnancy, but at that time father was AWOL from the Marines and provided no evidence that he had income at the time, or that it was he, rather than his own mother, who supported mother during those months. In fact, mothers transportation back to California was provided by 1-800-Runaway, not father. Father does not provide any evidence to show that he provided Katelynns mother with support either during her pregnancy or after Katelynn was born.

Second, father provided no evidence that he ever exhibited a commitment to Katelynn, such as by supporting her or by attempting to become involved in her life, despite the fact that he reasonably should have known, or at least strongly suspected, that he was Katelynns father. Father states in his section 388 petition that he made a single trip from Texas to California to visit Katelynns mother in juvenile hall, and afterwards exchanged letters and phone calls. After Katelynn was born, mother told father in a telephone call that she believed he was not the father because, on apparently a single occasion, mother had gone out with some girlfriends, got drunk, and had sexual relations with unknown males. However, the petition also states that father and mother had spent some weekends together prior to their move to Texas. Thus, substantial evidence supports a conclusion that, although father could reasonably have had some doubt as to whether he was Katelynns father based on mothers statements, he also reasonably should have suspected that he was Katelynns father and could have sought legal action by which to ascertain his paternity and assert his paternal rights.

Third, father asserted that mother threatened to have him criminally prosecuted for statutory rape if he tried to interfere with mother and Katelynn. However, father provided no evidence of this. In addition, as DCS points out, father does not present any legal authority that supports his argument that the fear of criminal prosecution excuses his failure to determine paternity and assume his responsibilities as Katelynns father.

Thus, substantial evidence supports the juvenile courts conclusion that father was not entitled to presumed father status.

B. Best Interests of the Child

We now turn to an analysis of whether the requested placement with father would have been in Katelynns best interest. We note that father does not address this point in his two appellate briefs, or in the section 388 petition for modification. To the extent that father has not waived this issue, substantial evidence supports the courts conclusion that placement with father would not be in Katelynns best interest. This is because the record shows that Katelynn was bonded with Tara R. and her family, and was especially bonded with her younger brother. In addition, Katelynn was in therapy to address emotional issues resulting from having been removed from her mother, then from the first foster care home, then from the great-aunt, and had finally achieved stability in Tara R.s home. Thus, the juvenile courts conclusion that placement with father would not be in Katelynns best interest is supported by substantial evidence.

Disposition

The juvenile courts orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Gaut

J.

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^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]Mother later revealed that Katelynn and her infant brother have different fathers. Mother is not a party to this appeal. Katelynns brother is not a subject of this appeal.

^[3]The section of Katelynns birth certificate for listing the name of her father was left blank. Mother repeated to the social worker on May 10, 2005, that she did not know who Katelynns father was.

^[4]The record indicates that Tara R. and her parents had often cared for Katelynn when Katelynns mother was overwhelmed or unavailable, including after school babysitting, overnight visits on weekends, and for periods as long as two months, including when Katelynns infant brother was born.