In re D.A.

Filed 8/29/06 In re D.A. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Shasta)

----

Appellant Jerome A. appeals from dispositional orders entered by the juvenile court declaring him to be the alleged father of minors D.A. and J.A. and denying him visitation with the minors. (Welf. & Inst. Code, §§ 360, subd. (d), 395; further statutory references to undesignated sections are to that code.) Appellant contends the juvenile court erred in denying him presumed father status as to D.A. and erred in denying him visitation with the minors. We agree only with his first contention, order the findings modified, and otherwise affirm the judgment.

BACKGROUND

On July 15, 2005, Shasta County Department of Social Services (the Department) filed a section 300 petition on behalf of D.A. (age 11) and J.A. (age 7) alleging the minors had suffered, or were at substantial risk of suffering, serious physical harm or illness because of their parents’ failure to provide them with the necessities of life. The petition alleged that appellant was incarcerated, serving a life sentence for murder, and the minors’ mother has mental health problems and had been unable to provide housing and basic necessities.

A combined jurisdictional and dispositional hearing was held on September 30, 2005. Appellant requested he be permitted to call and write to the minors, and made a request for possible visits. The Department recommended the minors continue in out-of-home placement, the minors’ mother be provided reunification services and appellant be denied reunification services or visitation. The Department had no objection to appellant writing to the minors or monthly telephone calls. The Department also requested appellant be declared the presumed father of D.A.

The juvenile court adjudged the minors dependents of the court and ordered their continued removal from the home. The minors’ mother was provided with reunification services, including visitation. The juvenile court denied reunification services to appellant pursuant to section 361.5, subdivision (e)(1), in that appellant is incarcerated and the provision of services would be detrimental to the children. The court did not find appellant to be the presumed father of D.A.

DISCUSSION

I

Appellant contends, and the Department concedes, the juvenile court erred in denying him presumed father status as to D.A. We accept the concession.

“An ‘alleged’ father refers to a man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status. [Citation.]” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.) A father’s status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.) A presumed father “ranks highest“ (In re Jerry P. (2002) 95 Cal.App.4th 793, 801) and is entitled to appointed counsel (§ 317, subd. (b)) and reunification services (§ 361.5, subd. (a)).

“In order to become a ‘presumed’ father, a man must fall within one of several categories enumerated in Family Code section 7611. Under Family Code section 7611, a man who has neither legally married nor attempted to legally marry the child’s natural mother cannot become a presumed father unless (1) he receives the child into his home and openly holds out the child as his natural child, or (2) both he and the natural mother execute a voluntary declaration of paternity. [Citations.]” (In re Francisco G., supra, 91 Cal.App.4th at p. 595.)

Here, D.A.’s mother testified that, although she was never married to appellant, she had been living with appellant when D.A. was born and that after D.A.’s birth, appellant had held him out as his own child and supported him. Appellant’s name was on both D.A.’s and J.A.’s birth certificates. Appellant was incarcerated approximately one month before J.A.’s birth. This evidence was uncontroverted. Consequently, the juvenile court should have granted appellant presumed father status as to D.A. We shall order the findings modified accordingly.

II

Appellant also contends the juvenile court erred in not finding detriment when it denied appellant visitation with D.A., as a presumed father, and that substantial evidence does not support an implied finding of detriment.

At the dispositional hearing, the juvenile court’s obligation to order visitation is affected by whether reunification services are ordered or denied. Thus, “any order placing a child in foster care, and ordering reunification services, shall provide . . .

. . . for visitation between the parent or guardian and the child.” (§ 362.1, subd. (a)(1)(A), italics added.) If the juvenile court denies reunification services, it “may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child.” (§ 361.5, subd. (f), italics added.) Therefore, the court has discretion whether to order visitation when it denies reunification services, even if it finds that visitation would not be detrimental. In contrast, when reunification services have been terminated, the juvenile court “shall continue to permit the parent . . . to visit the child pending the [section 366.26] hearing unless it finds that visitation would be detrimental to the child.” (§§ 366.21, subd. (h), 366.22, subd. (a), italics added.) We emphasize that, regardless of whether services have been denied or terminated, the statutory provisions contemplate a continuation of existing visitation, not the commencement of visits previously denied by the court.

Here, the juvenile court denied appellant reunification services under section 361.5, subdivision (e)(1), and appellant has not challenged that order. Because reunification services were denied, the denial of visitation was discretionary. The juvenile court was not required to make a finding of detriment under section 361.5, subdivision (f). We find no error.

DISPOSITION

The finding that appellant Jerome A. is the alleged father of D.A. and J.A. is modified to state that appellant Jerome A. is the presumed father of D.A. and the alleged father of J.A. The juvenile court is to prepare amended dispositional orders and findings to reflect this modification. As modified, the judgment of disposition is affirmed.

NICHOLSON , J.

We concur:

SIMS , Acting P.J.

RAYE , J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.