Filed 10/3/18 In re G.M. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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T. R., biological father (father) of the minor G. M., appeals the juvenile court’s order denying his petition pursuant to Welfare and Institutions Code[1] section 388 to change the court’s jurisdictional/dispositional order finding him a mere biological father, denying him presumed father status, and denying him reunification services. (§ 395.) Finding no merit in father’s claims, we affirm the juvenile court’s orders.

FACTUAL AND PROCEDURAL BACKGROUND

A detailed recitation of the facts and circumstances surrounding the minor’s removal is unnecessary for the adjudication of the issues on appeal. Suffice it to say that the minor, who was reportedly extremely malnourished and underweight, was removed from H. S. (mother) and J. M. (mother’s fiancé and the minor’s alleged father) just one month after birth. A dependency petition filed by the Shasta County Health and Human Services Agency (Agency) pursuant to section 300, subdivision (b) alleged the failure of mother and J. M. to protect the minor by providing him with adequate food, clothing, shelter, or medical treatment and regular care. The petition further alleged mother was suffering from mental health issues and substance abuse problems, and J. M. was suffering from mental health and anger control issues and substance abuse problems.

Mother testified regarding paternity at the detention hearing on March 1, 2017. When asked to identify the minor’s father, mother stated:

“I have two possible. One, I--his name is [T. R.] He lives out in Modesto. I had gotten with [J. M.] when I was pregnant, but we don’t know who is the dad. There’s two possible ones because if [T. R.] is the biological father, he moved to Modesto right after I told him that everything was going on. So I pretty much just put [J. M.] down on the birth certificate because he was nowhere to be during the whole pregnancy.” Mother was unsure whether she was living with father when she became pregnant, stating, “[T]here’s like a short amount of time between the time I was with him and the time I got with [J. M.], so I really don’t know.”

Mother testified she had been engaged to father but was not married to him. Mother further testified that father moved to Modesto, she had not spoken with him since he moved away, and she did not have any contact information for him. She stated father’s family lived in Modesto. She only knew the first name of father’s mother (paternal grandmother) and did not know the name of the paternal grandfather, who had been incarcerated since father was a child. When asked what she would do if she needed to contact father, mother stated she would look on some old paperwork to find his telephone number. Mother also testified she did not receive any child support from father, and never received any financial support from him during her pregnancy.

The court ordered the minor detained and requested that mother attempt to find a phone number for father and provide it to her attorney. Mother agreed to do so.

The dependency petition was amended on March 29, 2017, to include allegations of serious physical harm pursuant to section 300, subdivision (a), and severe physical abuse of a child under five pursuant to section 300, subdivision (e), after the minor reportedly suffered several broken bones and was choked while in the care of mother and J. M.

The disposition report filed April 27, 2017, identified father as an alleged father. The report noted his address in Modesto, but also stated his whereabouts were unknown. The Agency recommended the court find father to be an alleged father and deny him services due to his status as such. According to the report, the social worker attempted to obtain father’s address and telephone number from mother, but mother refused to provide any contact information stating “he wants nothing to do with the case or his son.” The disposition report was sent to father at his Modesto address.

Father appeared by telephone at the jurisdictional/dispositional hearing on May 19, 2017. The court appointed counsel for him, confirmed his address, and ordered him to submit to DNA testing.

The jurisdictional/dispositional hearing was continued to July 7, 2017, at which time the Agency notified the court that while the DNA test results were still pending, the Agency nonetheless recommended that no services be provided to father based on his status as either a mere biological father or an alleged father. Counsel for father did not object and, upon the submission by all parties to jurisdiction and disposition, the court adopted the findings and orders in the jurisdiction and disposition reports and found true the allegations in the amended petition, including that mother made minimal progress and J. M. and father made no progress toward alleviating or mitigating the causes necessitating out-of-home placement of the minor. The court ordered that father be given no services based on his status as an alleged father and his potential status as a mere biological father.

Father filed a petition pursuant to section 388 to change the court’s July 7, 2017 order, arguing that DNA testing identified him as the minor’s biological father and that he had been prohibited from visitation due to his status as an alleged father and through no fault of his own. Father’s petition sought reunification services, frequent visitation, and discretion for overnight and trial home visits, arguing placement of the minor with him would be in the minor’s best interest. Father argued he was entitled to placement of the minor, or reunification services, pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) because he was unable to otherwise establish presumed father status through no fault of his own.

In an addendum report filed September 18, 2017, the Agency recommended the court deny father’s section 388 petition due to his lack of contact or attempt to contact the minor or the Agency in spite of his knowledge that he was the potential father. According to the report, the minor was in the care and custody of the maternal grandmother. The report stated as follows:

“Per the maternal grandmother who currently has placement of [the minor], [father] wanted no contact with [mother] after she became pregnant. [Father] was aware that [mother] was pregnant and had requested that [mother] have an abortion. The maternal grandmother also states that [father] and [mother] were a couple and homeless in Chico, CA when [mother] became pregnant. Prior to being homeless in Chico, [father] and [mother] were living together in Modesto, CA with [father’s] mother, [W. B.] The maternal grandmother claims that [father] was physically abusive towards [mother] during their relationship. The grandmother also claims that after [mother] gave birth to [the minor], she contacted [father] to inform him of the birth and he denied the child being his.

“[Father] has never made any attempts to make contact with [the minor] while he was in the mother’s care or in the care of the Agency. [Father] has made no attempt to contact the caregiver of the child to inquire about him.”

The social worker reported that she contacted father on April 21, 2017. He stated he did not want contact with the minor until he had DNA results to prove he was the father. The social worker sent a parentage packet to father, but father returned the packet stating he was unsure if he was the minor’s father and requesting DNA testing and legal counsel.

The social worker further reported that when father learned the outcome of the July 7, 2017 hearing and the DNA test results, he requested visitation. In light of the court’s no visitation order, the social worker referred father to his attorney. It was also noted that father made no attempt to contact the Agency prior to July 7, 2017.

The addendum report noted further that, on July 21, 2017, after having received a voicemail from father and the paternal grandmother, the social worker contacted father, who stated he knew the DNA test results and wanted to obtain custody of the minor. The social worker again referred father to his attorney. When the paternal grandmother got on the phone and asked if she and father could go to the Stanislaus County court to seek custody of the minor, the social worker referred them both to father’s attorney for further clarification of the dependency proceedings and explained that the minor was a dependent of the Shasta County Juvenile Court.

At the November 13, 2017 hearing on father’s section 388 petition, father testified he was in a relationship with mother for approximately one year. During that time, father had a cell phone, which he had since lost. He did not know mother’s phone number by heart, but had it saved in his phone. They moved to Modesto to live with the paternal grandmother for approximately one month until they were kicked out, and then began living on the streets or staying with friends. It was father’s belief that mother did not know the paternal grandmother’s last name or telephone number but knew her address.

Father testified mother told him she was pregnant after they broke up, telling him he was possibly the father. However, he “had no intentions knowing that it was mine.” When he asked mother if the child was his, “she was trying to say it was, but I didn’t know it was mine at all because before then--before we broke up, we hadn’t had intercourse for a while, so I had no clue it was mine.” Father stated he had only one conversation with mother about her pregnancy and denied ever telling mother she should have an abortion. He claimed he had no way to contact mother after the minor was born because he did not have a phone.

Father stated he had not been contacted by Child Protective Services since the minor was placed under its supervision. He did not know the minor’s birthdate or age at the time of removal. He learned about the minor when friends showed him pictures on Facebook. Father testified he had a Facebook account at the time but did not know how to log into it. He did not try to use his friends’ Facebook accounts because “I didn’t want to bring them into this. I--they didn’t want to be a part of this, so they didn’t let me use their messenger and all that.” He later signed up for a new Facebook account after being unable to access his old account.

Father stated he was still living with the paternal grandmother and had recently obtained employment. When asked whether he wanted an opportunity to get to know and parent the minor, father said, “Yes.” He stated he wanted full-time custody of the minor and visitation in the interim. He admitted, however, that after being told the results of the DNA test, he did not ask to visit the minor or request visitation until a week later when he received a call from “the court.”

Social worker Marj Hillman testified she spoke with father by phone on April 21, 2017, to tell him he was a potential father of the minor. Father told her he did not want to have any contact with the minor “until he knew it was his.”

Social worker Jessica Nickles testified she contacted father on July 7, 2017, the day the DNA test results came back. Based on the court’s outstanding order, Nickles did not offer father services or visitation and referred him to his attorney.

The court denied father’s section 388 petition, finding he did not meet the factors in Kelsey S. to obtain presumed father status and finding him to be a mere biological father. The court set the matter for a selection and implementation hearing. (§ 366.26.)

Father filed a timely notice of appeal.

DISCUSSION

I

Presumed Father Status

Father contends there was insufficient evidence to support the juvenile court’s finding that he did not qualify as a presumed father pursuant to Kelsey S. He claims mother was untruthful and an obstructionist regarding the identity of the minor’s biological father, and her failure to come forward with father’s contact information resulted in a delay in contacting him though she identified him as a potential father at the detention hearing. The claim lacks merit.

“An unwed father’s rights and duties under the Uniform Parentage Act of 1973 (UPA), adopted by our Legislature as Family Code section 7600 et seq., substantially depend on whether he is a ‘presumed father’ within the meaning of Family Code section 7611. [Citations.]” (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228.) “Whether a biological father is a ‘presumed father’ . . . is critical to his parental rights [in adoption proceedings].” (Kelsey S., supra, 1 Cal.4th at p. 823.) Only “presumed fathers” are entitled to custody and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449.)

A biological father who does not fulfill the statutory criteria to qualify as a presumed father may nevertheless attain parental rights equal to those of the mother by showing he promptly stepped forward to assume full parental responsibilities for the child’s well-being, including a financial, emotional or other commitment; the child’s mother or a third party prevented him from assuming his parental responsibilities or physically receiving the child into his home; and he demonstrated a willingness to assume full custody of the child. (In re Jason J. (2009) 175 Cal.App.4th 922, 932, fn. omitted; In re D.M. (2012) 210 Cal.App.4th 541, 545.) Such an individual is often referred to as a Kelsey S. father. (Kelsey S., supra, 1 Cal.4th at p. 849.)

It is undisputed that father is the biological father of the minor. Short of that fact, he presented little if any evidence to demonstrate he qualified for presumed father status pursuant to Kelsey S. We explain.

First, there was no evidence father promptly stepped forward to assume full parental responsibilities for the minor’s well-being or was prevented from doing so or from physically receiving the child into his home. (Kelsey S., supra, 1 Cal.4th at p. 849.) In fact, the evidence reveals father did exactly the opposite. Mother and father had been in a relationship for approximately one year. After they separated, mother told father she was pregnant and that he was possibly the child’s father. “The father’s conduct both before and after the child’s 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 the mother will allow and his circumstances permit.” (Ibid.) “He must demonstrate a full commitment to his parental responsibilities within a short time after he learned that the biological mother was pregnant with his child.” (In re Elijah V. (2005) 127 Cal.App.4th 576, 583.) Father did not do so here. Instead of stepping in and assuming some responsibility or providing support for mother, father moved from Chico to Modesto and made no attempt to contact or provide financial or emotional support to mother. Thereafter, father learned about the minor’s birth when friends showed him pictures on Facebook but made no attempt to contact mother or find a way to be with the child. According to the maternal grandmother, father wanted nothing to do with mother after she became pregnant, denied the child was his, and asked mother to have an abortion. Father testified he and mother both had phones when they were together and mother’s phone number was saved in his phone. When asked why he failed to contact mother, father’s only explanation was that he did not have a phone.

Father claims he was prevented from assuming his parental responsibilities or physically receiving the minor into his home because mother was an “obstructionist and untruthful” regarding the identity of the minor’s biological father and failed to come forward with information with which to contact father. We are not persuaded. Mother identified father as a potential father early on at the March 1, 2017 detention hearing. At that time, mother informed the court that father lived in Modesto and that she had not spoken with him since he moved away. Mother also provided the court with what little information she had about father’s family, who also lived in Modesto, and stated she would attempt to find father’s telephone number in some old paperwork.

According to the April 27, 2017 disposition report, mother refused to provide the social worker with any contact information, stating father wanted “nothing to do with the case or his son.” Nevertheless, the report indicated the Agency had otherwise obtained father’s address in Modesto to which a copy of the report had been sent. The report also indicated the social worker made contact with father on April 21, 2017, at which time father stated he wanted no contact with the minor until paternity had been established through DNA testing. He returned a parentage packet sent to him by the social worker and requested DNA testing and an attorney. On May 19, 2017, father was appointed legal counsel and DNA testing was formally requested. He received the DNA test results confirming he was the biological father on July 7, 2017, but did not ask to visit the minor at that time. Approximately one week later he received a call from someone at the court, at which time he asked if he could see the minor but was told the court’s order prevented him from doing so. He waited another two weeks before informing the social worker he wanted to obtain custody of the minor. Contrary to father’s claims, there is no evidence mother was intentionally obstructing father or being untruthful to anyone about the identity of the minor’s biological father, and sufficient evidence to support the court’s finding that father did not demonstrate the element required to find him a presumed father under Kelsey S.

Father also contends he was prevented from establishing parentage due to the fact that the Agency and the juvenile court treated him like a “non-entity” throughout the proceedings. First, he claims that despite having been identified as a potential father on March 1, 2017, he was not mentioned in the April 11, 2017 jurisdiction report so as to inform the court of his existence as a potential father. However, the court had already been made aware of that fact on March 1, 2017, when mother identified him as a potential father.

Next, father claims the Agency failed to interview him or properly assess him to determine whether reunification services were appropriate no matter his paternity status. He again claims he was an unknown entity to the court and that his repeated efforts to establish paternity were thwarted by the Agency’s dilatory behavior. Father’s characterization of the record is unavailing. As previously discussed, father was known to the court and the Agency, having been identified by mother at the detention hearing. He made no effort to establish paternity early on after learning mother was pregnant, and made no attempt to contact mother once he became aware of the minor’s birth through Facebook posts. Indeed, it was the social workers who contacted him to inform him of his potential paternity. Yet, father was still unwilling to fill out a parentage packet or have any contact until the DNA test results proved he was the biological father of the minor, and he made no attempt to contact the social worker prior to July 7, 2017, when the DNA test results confirmed he was the minor’s father.

Finally, the only evidence of father’s willingness to assume full custody of the minor was, at best, tepid and late in the proceedings. At the November 2017 hearing on father’s section 388 petition, father was asked whether he wanted an opportunity to get to know and parent the minor. Father answered simply, “Yes.” While father eventually testified he wanted full-time custody of the minor, the evidence was sufficient to support the court’s finding that father failed to establish his willingness to assume full custody of the minor as required for Kelsey S. status.

We reject father’s assertion, made without citation to any supporting authority, that his paternity status should have been deferred until receipt of the DNA test results, at which time the court should then have held further proceedings to determine whether he could demonstrate he was a Kelsey S. father or, alternatively, he should have been granted reunification services as a biological father because it was in the minor’s best interests. In order to obtain status as a Kelsey S. father, it was father’s burden to demonstrate he met the elements set forth therein, not the least of which was that he promptly stepped in to assume full parental responsibilities. As discussed ante, he did not meet that burden. Neither the minor nor the court were required to wait for father to assert his claim of parental rights. “While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the father’s failure to ascertain the child’s existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any ‘opportunity to develop that biological connection into a full and enduring relationship.’ [Citation.]” (In re Zacharia D., supra, 6 Cal.4th at p. 452.)

Sufficient evidence supported the juvenile court’s finding that father was not a presumed father pursuant to Kelsey S.

II

Denial Of Section 388 Petition Seeking Reunification Services To Biological Father

Father contends that, even assuming he did not meet his burden under Kelsey S., the juvenile court nonetheless erred in denying his section 388 petition seeking an order for reunification services as a biological father because it was in the best interests of the minor to do so. Father claims that because the minor had no relationship with J. M., who abused him, and father had done nothing to harm the minor, it was in the minor’s best interest to develop a relationship with father.

Section 361.5 provides that, “pon a finding and declaration of paternity by the juvenile court . . . , the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.” (§ 361.5, subd. (a); Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.)

[u] /s/

Robie, J.

We concur:

/s/

Raye, P. J.

/s/

Hoch, J.