Marco V. v. Superior Court
Filed 12/9/13 Marco V. v. Superior Court CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
MARCO V. et al.,
Petitioner,
v.
THE SUPERIOR
COURT OF SAN
DIEGO COUNTY,
Respondent;
D064414
(San Diego
County
Super. Ct.
No. J518446C)
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES
AGENCY et al.,
Real Parties in Interest.
PROCEEDINGS in mandate after
referral to a Welfare and Institutions Code section 366.26
hearing. Cynthia Bashant, Judge. Petition denied; request for stay denied.
Dependency
Legal Group of San Diego and
Elizabeth A. Klippi for Petitioner Marco V.
Dependency
Legal Group of San Diego and Amanda
J. Gonzales for Petitioner Cathey B.
Thomas E.
Montgomery, County Counsel,
John E. Philips, Chief Deputy County Counsel and Lisa M. Maldonado, Deputy
County Counsel, for Real Party in Interest
San Diego County
Health and Human Services Agency.
Marco V. seeks
review of juvenile court findings and orders denying family
and Institutions Code section 361.5, subdivision (a) and setting a section
366.26 hearing. Marco asserts he has a
fundamental right to parent his child.
He argues the application of section 361.5, mandating reunification
services to mothers and statutorily presumed fathers, and Family Code section
7611, describing a presumed father, contravenes his rights to due process and
equal protection under the law as a biological father who cannot attain
presumed father status under statutory criteria. Marco maintains that he and his child's
mother and presumed father are similarly situated and therefore under
principles of equal protection, he is entitled to court-ordered family reunification
services.
Reviewing
courts have long recognized that the presumed father statute and related
statutory schemes violate the federal constitutional guarantees of equal
protection and due process for unwed fathers to the extent the statutes allow a mother or third party to
preclude the child's biological father from becoming a presumed father. (Adoption
of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey
S.); In re Jerry P. (2002) 95
Cal.App.4th 793, 801-802 (Jerry P.).) To avoid constitutional infirmity, a
biological father who has been prevented by another party from meeting statutory
requirements for presumed father status may show he has demonstrated a full
commitment to his parental responsibilities and obtain a status equal to that
of his child's mother. (
Marco was
not deprived of due process or equal
protection of the law. He had the
opportunity to establish his status as a Kelsey
S. father. He also had the
opportunity to receive discretionary services under section 361.5, subdivision
(a) if he could show that services would benefit the child. Marco does not challenge the juvenile court's
finding that ordering services to him would not benefit his child. In view of Marco's history of crime, repeated
incarceration and drug use, the court did not abuse its discretion in denying reunification
services to him. We deny the petition.
FACTUAL
AND PROCEDURAL BACKGROUND
Marco and
Cathy are the parents of Michelle V., who was born healthy in June 2013. Cathy had an open dependency case for two of
her other children due to methamphetamine use.
None of her seven children were in her care. Cathy tested positive for methamphetamine
when she was six months pregnant with Michelle.
The San Diego County Health and Human Services Agency (Agency) detained
Michelle at birth and filed a section 300 petition alleging the child was at
substantial risk of harm due to her mother's substance abuse and lack of
amenability to treatment. (§ 300,
subd. (b).)
At the time
of Michelle's birth, Cathy was married to Fernando B., who was serving a
lengthy prison term in Arizona. Their
divorce was pending. Marco was in jail
in San Diego County. He had been arrested
in December 2012 on charges of battery, assault and conspiracy to commit auto
theft. Marco had a conviction for
possession of controlled substances with intent to sell. He was subject to a gang injunction and had
been involved with the juvenile and criminal justice systems since he was 12
years old. Marco last worked in 2009 or
2010.
At the
detention hearing, the juvenile court appointed counsel for Marco and
authorized paternity testing. The court
designated Cathy's husband, Fernando, as Michelle's presumed father.
Marco was
released from jail the day after the detention hearing. He and Cathy lived together at his mother's
house. Paternity testing confirmed that Marco
was Michelle's father. Michelle was
placed with her paternal aunt (caregiver).
Marco and Cathy visited Michelle three times a week at her caregiver's
home. The social worker observed that Marco
and Cathy were attentive to Michelle's needs and spoke to her in a loving
manner.
The Agency
recommended the court not order reunification services to Cathy, Fernando and Marco,
and schedule a hearing to select and implement a permanency plan for Michelle under
section 366.26.
Shortly
before the jurisdictional and dispositional hearing, Marco filed a motion to be
designated a presumed parent under the Due Process and Equal Protection Clauses
of the United States Constitution and Kelsey
S. Marco acknowledged he did not
qualify for presumed father status under any provision of Family Code section
7611.
The
juvenile court construed Marco's motion as a request for Kelsey S. status. Marco testified
he wanted to participate in reunification services as Michelle's presumed
father. The Agency had given him
referrals to voluntary substance abuse treatment services but he had not
enrolled because he went to an address that was no longer current. Marco attended Narcotics Anonymous meetings
at least once a week. He contacted a
parenting program but needed authorization from the social worker to
enroll. He did not complete a drug test
because he had too much to do and no transportation. Marco visited Michelle three times a
week. He knew Cathy was pregnant before
he was incarcerated. She visited and
telephoned him while he was in jail. He
asked her about the baby and her health and pregnancy. Marco was willing to accept full
responsibility for Michelle. Marco had
three other children with two different mothers. The children's mothers would not let him see
his children. He did not know where they
lived.
The
juvenile court found that Marco did not show a full commitment to his parental
responsibilities during Cathy's pregnancy.
Marco knew Cathy was pregnant before he was incarcerated. His own actions kept him from supporting her,
attending prenatal visits and being present at Michelle's birth. Although Marco "stepped up to the plate"
after Michelle's birth, he struggled to keep appointments for services that
would allow him to parent his daughter.
The juvenile court denied Marco's motion for Kelsey S. status and proceeded to the jurisdictional and
dispositional hearing.
Cathy
testified she and Marco visited Michelle three days a week. They talked to her, changed her diaper and fed
her. She discussed her participation in
substance abuse treatment and other services.
Her efforts were different this time because she had the support and
love of Marco and his family. Cathy was
aware Marco had a history of methamphetamine use.
The social
worker said Cathy had participated in substance abuse treatment services for
six weeks. Her parental rights to two of
Michelle's half siblings were terminated two weeks earlier. The social worker referred Marco to the
substance abuse specialist on June 28 and July 5, 8, 29 and 30, but he had not
yet attended an intake or started a program.
Marco, who was 22 years old, had an extensive criminal history. He spent most of his adult life in and out of
jail. Marco failed to drug test when
asked. The social worker said it was not
in Michelle's best interests to provide services to Marco or Cathy. Michelle needed caregivers who placed her
needs first and would not jeopardize her well-being by a lifestyle associated
with drugs and crime.
The
juvenile court sustained the section 300 petition by
Michelle from Cathy's custody and found that placement with Marco or Fernando
would be detrimental to Michelle. The
court denied reunification services to Cathy and Fernando. (§ 361.5, subds. (b)(10), (11), (13)
& (e)(1).) The court found that ordering
services for Marco would not benefit Michelle and denied his request for
services. (§ 361.5, subd. (a).) The court set a section 366.26 hearing for
December 11, 2013.
Marco
petitioned for review of the juvenile court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) He asks this court to reverse the orders
setting a section 366.26 hearing, and to remand the matter with directions to
the juvenile court to enter an order for family reunification services. This court issued an order to show cause, the
Agency responded and the parties waived oral
argument.
DISCUSSION
Marco asserts
he has a fundamental right to parent his child.
He argues the application of section 361.5, coupled with his inability
to meet criteria for presumed father status under Family Code section 7611,
violates his rights to due process and equal protection as guaranteed by the
United States Constitution. Marco further
contends the juvenile court applied too stringent a standard for determining
family reunification are similar or better than those of his child's mother and
presumed father and the disparate treatment he receives under the statutory
scheme violates his right to equal protection.
A challenge
to the constitutionality of a statutory scheme is a question of law subject to
de novo review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801.)
A
Marco's Rights to
Due Process and Equal Protection Were Not Violated
The California dependency system differentiates
between the rights of presumed, natural and alleged fathers. (In re
Zacharia D. (1993) 6 Cal.4th 435, 448 (Zacharia D.).) "[N]atural
fathers [have] far less rights than both mothers and presumed fathers have
under California's statutory system."
(Kelsey S.,
one or more of the criteria specified in Family Code section 7611. (Zacharia
D., at p. 451.) Under the California
dependency scheme, only mothers and statutorily presumed fathers are entitled
to court-ordered reunification services.
(§ 361.5, subd. (a).)
name="_ftnref3" title="">[3]
In 1992, the California Supreme
Court addressed the claim the statutory scheme impermissibly allowed a mother
to preclude her child's father from acquiring presumed father status and
eliminate his need for consent to an adoption regardless of whether he was a
demonstrably fit parent. (
The petitioner in that case asserted the statutory scheme violated his
federal constitutional rights to equal protection and due process rights;
specifically, that he should not be treated differently than his child's
mother. (Id. at p. 844.)
Kelsey
S. holds that the presumed father statute and related adoption statutory
scheme "violates the federal constitutional guarantees of equal protection
and due process for unwed fathers to the extent that the statutes allow
a mother unilaterally to preclude her child's biological father from becoming a
presumed father and thereby allowing the state to terminate his parental rights
on nothing more than a showing of the child's best interest. 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." (Kelsey
S., supra, 1 Cal.4th at p. 849.)
In 2002, the Second District Court
of Appeal applied the constitutional analysis in Kelsey S. to dependency
proceedings. (Jerry P., supra,
holds that the scheme for determining presumed father status in dependency
proceedings is unconstitutional insofar as it permits the mother or a third
party unilaterally to preclude a man from becoming a presumed father by
preventing him from receiving the child into his home despite his demonstration
of a full commitment to his parental responsibilities before and after the
child's birth. (Id. at pp. 802-803.)
Like the fathers in
Family Code section 7611, subdivision (d), which provides that a man is
presumed to be a natural father of a child if he receives the child into his
home and openly holds out the child as his own.
No other provision of Family Code section 7611 would apply. Marco did not have any opportunity to bring
Michelle into his home because the Agency had custody of her from birth. He did, however, have the opportunity both before
and after his daughter's birth to demonstrate his full commitment to his
parental responsibilities. Any
unconstitutional inequities that may be present in the statutory scheme were
remedied by the juvenile court's consideration of Marco's request for presumed
father status under Kelsey S. Marco's rights to due process and equal
protection were not violated.
B
Kelsey S. Factors
Marco
complains the juvenile court applied too stringent a standard when determining
whether he had demonstrated a full commitment to his daughter. He contends in view of his incarceration it
was unfair of the juvenile court to consider such factors as whether he
attended mother's prenatal visits, provided financial support to the mother,
paid for medical expenses, took legal action to establish paternity before the
child was born and was present at the hospital when the child was born. Marco argues the application of these factors
is the equivalent of " 'go to prison, lose your child' " and is not permissible
under California law. (
1399, 1402.)
In deciding whether a man qualifies
for Kelsey S. status, a court
considers all factors relevant to whether the biological father has assumed his
parental responsibilities as fully as circumstances permit. "The father's conduct both before and
after the child's birth must be considered." (Kelsey
S., supra, 1 Cal.4th at p. 849.) Once he knows or reasonably should know of
the pregnancy, he must promptly attempt to assume his parental responsibilities
and demonstrate a willingness to assume full custody of his child. A court should also consider the father's
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. (Ibid.) These factors were formulated
in the context of an adoption case in which the child's mother wanted to place
the child for adoption over the objection of his presumptively fit father, who
wanted to raise his son. (
Marco's circumstances are
different. The juvenile court's remarks focused on the fact Marco knew that Cathy
was pregnant with his child before he
was arrested and jailed. The court reasonably
inferred that Marco's decision to continue his criminal activities, with the
attendant risk of incarceration, did not evince a full commitment to his
parental responsibilities before Michelle's birth. (Jerry
P., supra, 95 Cal.App.4th at pp. 802-803.) The court did not abuse its discretion when
it distinguished between a situation in which the child's mother prevented the
child's biological father from attending prenatal appointments and being
present at the hospital and a situation in which the biological father's life
choices prevented him from assuming his parental responsibilities. The juvenile court did not apply an incorrect
legal standard when it determined that Marco did not promptly attempt to assume
his parental responsibilities. (
P., supra, 95 Cal.App.4th at pp. 802-803.)
After Michelle was born, Marco
visited her regularly. He and Cathy continued
their relationship, and Marco's family was involved in Michelle's care. The juvenile court gave Marco credit for his
actions. The court also found that Marco
was having problems meeting his responsibilities to address the issues that
would prevent him from safely parenting Michelle. Although Marco said he was fully committed to
his daughter, he told the social worker he was "not going to be rushing
trying to get things done as fast as possible. . . . I want to get my daughter back and I am going
to do what I have to do. I am just not
going to be jumping through hoops trying to get everything done." The social worker referred Marco to a
substance abuse specialist in late June, and gave him four additional referrals
in July. By mid-August, Marco had not
attended an intake or started treatment.
He missed a drug test. Marco
squandered his opportunity to demonstrate his commitment to his parental
responsibilities when he chose to delay participating in the services that
would stabilize his circumstances and improve his ability to safely parent his
daughter. The juvenile court could
reasonably conclude that Marco did not demonstrate a full commitment to his
parental responsibilities and did not abuse its discretion when it denied Marco's
request for Kelsey S. status. (Kelsey
S., supra, 1 Cal.4th at p. 849;
DISPOSITION
The petition is denied.
The request for stay is denied.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] Unless otherwise specified, all statutory references are to
the Welfare and Institutions Code.
name="_ftn2" title="">[2] The child's mother, Cathy B., did not file a writ
petition. She joins in the argument and
position of Marco.
