In re Santino W.
Filed 5/17/06 In re Santino W. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re SANTINO W., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SANTOS W., Defendant and Appellant. | D047715 (Super. Ct. No. J512433A) |
APPEAL from orders of the Superior Court of San Diego County, Peter Riddle, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Santos W. appeals an order denying his request for a contested hearing to allow him to seek to establish that he is the presumed father of Santino W. and an order denying his request for a continuance. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In August 1998, five-year-old Santino became a dependent child of the court because his mother, K.C., used drugs to excess and was incarcerated and unable to provide care, and the whereabouts of his father, Santos, were unknown. K.C. said she did not know where Santos was, but thought he probably was in Los Angeles. The paternal grandmother first said Santos was in El Salvador, but then reported receiving a letter from him postmarked Long Beach, California. In a paternity questionnaire, K.C. reported Santos was listed on Santino's birth certificate, he had been at the hospital when Santino was born, and he had signed a declaration signifying he is Santino's father. She said she and Santos were never married, there was not a judgment of paternity, and Santos had not supported Santino, but he had sent clothing and shoes. Willa G., a long-time family friend, was appointed guardian of Santino and his half brother, Dante G.[1] In June 1999, the court terminated jurisdiction.
In May 2005, Willa petitioned under Welfare and Institutions Code section 388, requesting the guardianship be terminated and the children be placed with K.C. On June 1, Santos submitted a statement indicating he believes he is Santino's father and requesting a judgment of paternity. He filed a paternity questionnaire, stating Santino had lived with him in 1996 and been to his house " all the time." He said he had bought clothing and shoes, helped out financially and told family members that Santino is his child. He said, however, that there had not been a judgment of paternity, he had not participated in paternity testing and he had not been ordered to pay child support. K.C. filed a new paternity inquiry. In it, she said Santino had not lived with Santos, but had been to his home " 1x a month for a weekend," and Santos had bought Santino food and clothing. Santos and K.C. said Santos was listed on the birth certificate, but he had not signed a declaration of paternity at the hospital. The court appointed counsel and reinstated dependency jurisdiction. Santos requested custody if it were denied to K.C. Santino's counsel indicated Santino had been spending time with Santos. Santino and Dante were detained with K.C. and the court ordered Santos would have unsupervised visits.
At a hearing on June 23, 2005, Santos requested presumed father status under Family Code section 7611, subdivision (d).[2] The court set a special hearing to address paternity, terminated the guardianship, placed Santino and Dante with K.C. and ordered supervised visits for Santos. However, at the special hearing on July 7, Santos's counsel did not present evidence that Santos is Santino's presumed father under section 7611, subdivision (d), but, instead, requested a genetic paternity test. The court granted the request, ordered Santos to appear for the test that same day and ordered supervised visits and services for him. The court noted although Santos remained an alleged father, there was strong evidence he is Santino's father.
In a status review report, dated December 14, 2005, the social worker with the San Diego County Health and Human Services Agency (the Agency) reported that Santos had not participated in genetic paternity testing and had not kept in contact with K.C. or with the Agency. At a family maintenance hearing on December 14, Santos's new counsel requested a continuance and a special hearing to allow Santos to establish presumed father status. He indicated Santos had not had a paternity test because he had no doubt that Santino was his child. The court denied Santos's requests and terminated jurisdiction.
DISCUSSION
Santos contends the court erred by denying his requests for a continuance and for a contested hearing on presumed father status. He argues his name is on Santino's birth certificate and the facts of the case support presumptions that he is Santino's presumed father. He claims the court violated his right to due process by not providing him with the opportunity to establish presumed father status so that he could request custody and visitation.
Presumed fathers, alleged fathers and biological fathers are recognized in dependency law. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) An alleged father is a man who has not established paternity or presumed father status. (Ibid.) A biological father is a man who has established paternity, but has not established that he qualifies as the child's presumed father. (Ibid.) A presumed father is a man who meets the criteria of section 7611, which contains rebuttable presumptions of paternity. Section 7611, subdivision (d) sets forth a rebuttable presumption of paternity when a man receives a child into his home and openly acknowledges the child as his natural child. A father has the burden of showing he is entitled to presumed father status by a preponderance of the evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)
The court did not abuse its discretion at the December 14, 2005 hearing when it denied Santos's request for a continuance and for a special hearing on presumed father status. The juvenile court may grant a continuance only upon a showing of good cause. (Welf. & Inst. Code, § 352, subd. (a).) " Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Six months before the December 14, 2005 hearing, when Santos's appointed counsel stated Santos was asking for presumed father status under section 7611, subdivision (d), the court set a special hearing for July 7 to address the issue of paternity. However, inexplicably, at the special hearing, instead of pursuing Santos's claim that he was entitled to presumed father status under section 7611, subdivision (d), Santos's counsel asked for a genetic test in order to establish biological paternity.
Because there did not appear to be any real question that Santos was Santino's biological father, it is unclear why at the July 7, 2005 hearing counsel asked for a genetic test on biological paternity instead of pursuing Santos's section 7611, subdivision (d) claim. But, in any event, we cannot say it was an abuse of discretion for the court, months later at the December 14 hearing, to deny Santos's requests for a continuance and for the setting of another special hearing. Due process requires a fair proceeding with the parent having a meaningful opportunity to present his or her case. (In re Ingrid E. (1999) 75 Cal.App.4th 751, 757.) " [D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314 .) Santos has not shown a denial of due process. He had the opportunity for a hearing on presumed father status in July and did not take advantage of it. It was not error for the court to decide five months later not to delay termination of jurisdiction in order to grant a continuance to set a further hearing on presumed father status when there were no protective issues remaining.
Moreover, we note that even had the court continued the hearing for a special hearing on presumed father status, it is unlikely that it would have determined Santos was qualified to be Santino's presumed father. " Presumed fatherhood, for purposes of dependency proceedings, denotes one who 'promptly comes forward and demonstrates a full commitment to his paternal responsibilities -- emotional, financial, and otherwise[.]' " (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.)
Santos had a history of not being involved in Santino's life. The record does not show he took any parental responsibility during Santino's early years and he did not appear in court during the first dependency case in 1998 and 1999. There is no indication he made a formal commitment to caring for Santino while Santino was in a guardianship between 1999 and 2005. According to the paternity questionnaire K.C. completed in 1998 when Santino was five years old, Santos had not supported Santino and Santino had never been to Santos's home, although he had sent clothing and shoes to Santino. In a second paternity questionnaire she completed in 2005, she said Santino had never lived with Santos, but Santos had supported him with food and clothing and Santino had been to his home " 1x a month for a weekend." On the questionnaire Santos completed in 2005, he said Santino had lived with him in 1996 and had been to his home " all the time," he had told family members Santino was his child, and he helped out financially and bought shoes and clothing. Santos and K.C. agreed his name was on the birth certificate, but that he had not signed a declaration of paternity at the hospital.
Santos waited until Santino was 12 years old before requesting a judgment of paternity and presumed father status. For the December 14, 2005 hearing, the Agency reported neither the Agency nor K.C. had seen or heard from Santos. At the hearing, Santino's counsel stated that Santos had not been visiting Santino. She stated, " He [Santos] had one or two visits and that was it." Based on this record it appears unlikely that the court would have ruled the evidence showed that Santos had demonstrated sufficient commitment to parental responsibilities to qualify as Santino's presumed father under section 7611, subdivision (d).
Santos's reliance on In Raphael P. (2002) 97 Cal.App.4th 716 for his suggestion that because his name is on the birth certificate he is entitled to presumed father status is misplaced. In In Raphael P., the appellate court ruled the fact that the alleged father's name was on the birth certificate was prima facie proof that he had signed a voluntary declaration of paternity at the hospital as he had declared. (Id. at p. 738.) Here, however, Santino was born in 1993 before enactment on January 1, 1995, of section 7571, which requires that an unwed mother and the man she identifies as the father must be provided with a declaration of paternity before they leave the hospital after giving birth. Also, his birth was before Health and Safety Code section 102425, subdivision (a)(4) was amended in 1996 to provide an unmarried father's name " shall not be listed on the birth certificate unless the father and the mother sign a voluntary declaration of paternity at the hospital before the birth certificate is prepared." (Stats. 1996, ch. 1062, § 19, pp. 6682-6683.) Because Santino was born before these statutory provisions were effective, the reasoning of In re Raphael P., supra, 97 Cal.App.4th at page 723 does not apply to his case. Also, although in her 1998 paternity inquiry K.C. stated Santos had signed a declaration of paternity at the hospital, both she and Santos stated in 2005 that he had not signed a declaration. Santo's name on the birth certificate would not automatically entitle him to presumed father status.
In addition, Santos has not shown prejudice. At the December 14, 2005 family maintenance hearing the court was required, if it found the conditions which had justified the assumption of jurisdiction no longer existed and the child would no longer be in need of juvenile court protection, to terminate jurisdiction. (Welf. & Inst. Code, § 364, subd. (c).; In re Robert L. (1998) 68 Cal.App.4th 789, 794.) For the hearing, the Agency reported that Santino and Dante were doing well in placement with K.C. No evidence was presented indicating a need for continuing jurisdiction. Thus, even had Santos been able to establish presumed father status, it is unlikely that the juvenile court would not have terminated its jurisdiction.
Santos has not shown that the court erred in denying his requests for a continuance and for a hearing on presumed father status. Because the juvenile dependency has been terminated, he now has the option of seeking visitation and custody orders in family court.
DISPOSITION
The orders are affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
McDONALD, J.
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[1] Dante is not a part of this appeal.
[2] All further statutory references are to the Family Code unless otherwise noted.
