Joshua D. v. Superior Court

Filed 11/2/07 Joshua D. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Kaouza Chou for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

Joshua D., the biological father of J.D., contends that the juvenile court erred in denying him status as a presumed father and refusing to order the provision of reunification services. We find no error and, accordingly, deny this petition for extraordinary writ relief.

FACTS

The Riverside County Department of Public Social Services (department) received a report in April 2007 that J.D.s mother and Brian A. were using methamphetamine and not providing proper care for the five children living in their home. Mother was the parent of three children, including J.D, and Brian apparently was the father of all the children with the exception of J.D. Mother and Brian had a long history of involvement with the department and had received extensive services over the years. An earlier dependency proceeding had been terminated only five months before this latest report.

A dependency petition was filed with respect to J.D. and two half siblings in May 2007. Mother reported that Joshua was J.D.s father, but indicated she did not know his whereabouts.

Joshua has an extensive criminal history and he was incarcerated at the time of J.D.s birth in February 2006. Mother did inform him that he was the biological father, a fact later confirmed by DNA tests, but petitioner was not identified on the birth certificate as J.D.s father.

The department recommended that family reunification services be denied mother and Brian pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(13), because of their ongoing drug abuse despite having undergone court-ordered treatment on at least two prior occasions. The social worker noted that mother had given birth to a drug exposed infant, [been] arrested on drug related charges, and had her children removed from her care on three different occasions due to her on-going drug addiction. She has now been provided a total of forty-four months of services, including drug treatment . . . and she has failed to benefit from these services. The department also opined that Joshua was not entitled to reunification services because he was merely an alleged father, not a presumed father.

At the contested jurisdictional/dispositional hearing on July 25, 2007, Joshua appeared and, pursuant to the stipulation of the parties, his attorney read his testimony into the record with no cross-examination.

Joshua presented evidence that prior to his release from prison in December 2006, mother sent him a letter informing him that she was pregnant with his child. He contacted his mother (paternal grandmother) and asked her to checkup on mother and see if she needed anything. He stated that mother sent him two pictures of J.D. taken at the hospital and pictures taken a few months later, and led him to believe the baby would be given his last name. He was also told by mother that when he got out she was going to allow him six months in order to get a job because he had to do an inpatient program. They agreed that he would do DNA testing and go back to the hospital to put his name on the birth certificate.

After his release from prison in December 2006, Joshua enrolled in an inpatient drug program and could not leave to find a job or attend J.D.s birthday party. He did leave the program on another day with a pass; he picked up J.D. and had a party with his family. Joshua claims that while he was in the program, mother brought J.D. to visit him on three or four separate occasions. He completed the inpatient program and attended parenting classes while there.

The paternal grandmother visited mother and J.D. shortly after his birth and, at the request of Joshua, spent over $100 to buy clothing for the baby. Joshua claimed that he provided financial support in the form of buying diapers, milk and food for J.D. He says that he also gave money to the mother to buy gas.

Mothers statement was also received into evidence without cross-examination. Mother stated that the paternal grandmother bought diapers approximately two times; that some of the diapers were kept at the paternal grandmothers home and some diapers were given to the mother. Mother indicated that J.D. visited at the paternal grandmothers home three times, and that Joshua was present on two of those occasions. Mother denied Joshua gave her any money. She indicated he had provided her only one gallon of milk, one travel-size pack of baby wipes, and a 26-pack of Pull-Ups that the child could not use. Finally, she stated that J.D. does not call Joshua anything but calls Brian dada or dad.

Although the juvenile court found that Joshua is J.D.s biological father, it concluded that there was no basis under a decision of case law or under a statute a way to give [him] presumed father status. I dont think that under [Family Code section] 7611 he is entitled to presumed father status. Furthermore, it could not find on the record that it would be in the childs best interest . . . for [him] to receive family reunification services, noting the childs bond with his siblings, and the effort to place them together, as well as the fact that Joshua currently was facing criminal charges and a possible return to prison. Instead, the court found that Brian was the presumed father.

The court denied reunification services to both mother and Brian based on their ongoing drug abuse problems.

DISCUSSION

Dependency law recognizes four types of fathers: presumed, alleged, biological, and de facto. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15; In re Jerry P. (2002) 95 Cal.App.4th 793, 801; In re Crystal J. (2001) 92 Cal.App.4th 186, 190.) A presumed father is a man who meets one or more statutorily specified criteria under Family Code section 7611. A biological father is one whose paternity of the child has been established but who has not established that he qualifies as the childs presumed father. (Zacharia D., at p. 449, fn. 15.)

Only a presumed father has a right of 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), although the juvenile court may provide services to a biological father if it determines that the provision of services will benefit the child. (Welf. & Inst. Code,  61.5, subd. (a).) In general, a presumed father is one who  promptly comes forward and demonstrates a full commitment to his paternal responsibilitiesemotional, financial, and otherwise[,]  or who has either married or attempted to marry the childs biological mother. (In re Jerry P., supra, 95 Cal.App.4th at pp. 801-802, fn. omitted; see also Fam. Code, 7611, subds. (b), (c).) The purpose of Family Code section 7611 in dependency proceedings is to determine whether the alleged father has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathersthe rights to reunification services and custody of the child. (Jerry P., at p. 804.) 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.)

In order to demonstrate a full commitment to his parental responsibilities, the biological father must promptly attempt to assume full parental responsibilities as soon as he reasonably knows of the pregnancy. (In re Julia U. (1998) 64 Cal.App.4th 532, 541.) 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., supra, 95 Cal.App.4th at p. 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.)

Upon review of the juvenile courts determination of presumptive fatherhood, we review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. 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.] (Miller v. Miller (1998) 64 Cal.App.4th 111, 117-118, quoting In re Spencer W., supra, 48 Cal.App.4th at p. 1650.)

In this case, the evidence shows that Joshua did acknowledge J.D. as his son and had the paternal grandmother visit with the child, but his efforts following his release from prison were focused on completing his own drug program. He did not provide support for J.D., but made only token contributions of diapers, milk, and clothing, some that were actually provided by the paternal grandmother. Joshua did attend a birthday party for J.D. along with other family members, but his visitation with the child appears to have been limited. Further, at the time of the hearing Joshua faced criminal charges and a possible return to prison. Based on this evidence and the principles cited above, we conclude that substantial evidence supports the juvenile courts conclusion that Joshua was not entitled to presumed-father status. Nor did the juvenile court err in finding that it would not be in the best interests of J.D. to offer reunification services to Joshua because of the childs bond with his siblings and the effort to place them together.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING

J.

We concur:

RAMIREZ

P. J.

RICHLI

J.

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