Filed 3/3/22 In re N.J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.

Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.

Steven O’Neill, Interim County Counsel, and Richard W. Van Frank, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

N.N. (father) appeals from a juvenile court’s order finding that he was an alleged father, rather than a presumed father. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 25, 2021, the San Bernardino County Children and Family Services (CFS) filed a Welfare and Institutions Code[1] section 300 petition on behalf of N.J. (the child), who was one month old at the time. The petition alleged that she came within the provisions of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). It specifically alleged that the child’s mother R.J (mother)[2] had an untreated history of mental illness; on or about April 5, 2021, mother physically abused the child’s sibling and as a result five of her children were removed from her care, and father knew or should have known that mother previously had children removed from her care due to concerns of abuse and/or neglect.

The social worker filed a detention report and stated that mother had five children removed from her care on April 5, 2021, after she struck one of them with a broken broom. The child was subsequently born on April 23, 2021. Mother failed to notify the social worker from her open dependency case when she gave birth since she was attempting to avoid the child’s removal.

The social worker reported that CFS received a 10-day referral with allegations of general neglect to the child. She spoke with mother’s assigned social worker on the open dependency case. That social worker stated mother was instructed to inform CFS when she gave birth to the child and was advised that the child would be taken into custody due to her other children being removed. However, when mother gave birth, she instead gave the child to the maternal stepgrandmother (step-MGM). When asked about the child’s father, mother said he left her when she told him she was two months pregnant. Mother denied knowing where the alleged father was and did not provide his name.

On May 20, 2021, the social worker spoke with mother on the phone and advised her of the open investigation and the need to speak with her and see the child. Mother became upset and stated that all of her children were safe in her care. She then claimed she gave the step-MGM “temporary custody” of the child. Mother identified father as the child’s father and said he lived “on his own.”

On May 21, 2021, the social worker served mother with a detention warrant, removing the child from her care. Mother said the child had been with the step-MGM since she was born and that she gave the step-MGM custody via a notarized letter.

That same day, the social worker spoke with father. He confirmed being the child’s father and believed that he was named on her birth certificate; however, he said he did not sign the birth certificate since he had to leave for an errand before he could do so. Father claimed the child had been in his care since she was born, until the previous day. However, he then stated that three days prior, mother took the child to the step-MGM, claiming that she had given her custody. Father confirmed having provisions for the child. He reported that he was residing with mother until October 2020, when he moved out because the father of one of mother’s other children was upset that he and mother were having a child together. Father denied being in a relationship with mother. The social worker informed father that the child had been taken into CFS custody, and he said he was interested in having her placed with him.

The court held a detention hearing on May 26, 2021. Mother stated that father was the child’s biological father, but he was not present when the child was born. She said she put his name on the birth certificate. The court asked if father signed anything saying he was the father, like a Voluntary Declaration of Paternity. She said no. The court then asked if father had taken the child into his own home or lived with the child. Mother said, “No. She stayed a night with him one time. That was it.” Mother said father held the child as his own, but there was no child support order. The court detained the child in foster care.

Jurisdiction/Disposition

The social worker filed a jurisdiction/disposition report on June 23, 2021, recommending that the court sustain the petition, declare the child a dependent, and remove her from the parents’ custody. She recommended the court find father to be an alleged father only. Thus, she recommended that mother be provided services, but not father. The social worker reported that she interviewed mother, who said she was not married to father or even in a relationship with him. Mother stated she had not had any contact with him since she was two months pregnant. She reported that father was not present when the child was born, and he did not sign the birth certificate. The social worker had a copy of the child’s birth certificate and father was not listed on it. Mother said they were not living together at the time the child was conceived. She said father acknowledged the child was his, but there was no child support order, and he had not provided any financial support for the child.

The social worker interviewed father on June 21, 2021. He stated that he has not seen mother since she got pregnant, and he had not spoken with her since then. Father said he is married but was separated from his wife and was “messing with” mother for five to six months. He said he went back home to his wife, and his wife knew about the child. Father stated that he was the child’s father and confirmed that he was not present when she was born and did not sign the birth certificate. He confirmed there was no child support order but reported that he had provided clothes and diapers. He stated that he had not provided any money because the child was only a month old.

The court held a jurisdiction/disposition hearing on August 5, 2021. Father was not present but was represented by counsel. The court observed that proper notice had been given, but father did not show up. It noted that he originally appeared at the detention hearing and had not appeared since then. Counsel for the child submitted on CFS’s recommendations and added that father did not sign a Voluntary Declaration of Paternity and was not present at the birth. She noted he had not provided any financial support and only alleged he provided clothes and diapers, which was not enough to make him a presumed father. The court sustained the petition and declared the child a dependent. It then found father to be an alleged father, stating that he had not shown anything that elevated him to presumed father status. Father’s counsel objected and asserted that father took care of the child for two months after she was born. County counsel replied that father’s claim was contrary to mother’s statement that she had not seen him since she was pregnant. The court set a six-month review hearing.

DISCUSSION

The Court Properly Found Father to Be an Alleged Father

Father contends the court erred when it found he was only an alleged father and not a presumed father. He claims he was entitled to presumed father status because he informed his wife about the child, held the child out as his own, received her into his care, had supplies to care for her, and requested custody. We conclude that the court properly found him to be an alleged father.

A. Relevant Law

“The Uniform Parentage Act [citation] provides the statutory framework by which California courts make paternity determinations. [Citations.] Under this statutory scheme, California law distinguishes ‘alleged,’ ‘biological,’ and ‘presumed’ fathers. [Citation.] ‘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, is an “alleged” father. [Citation.]’ [Citation.] ‘A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . .’ [Citation.] [¶] ‘Presumed’ fathers are accorded far greater parental rights than alleged or biological fathers. [Citation.]’ . . . Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611.” (In re J.L. (2008) 159 Cal.App.4th 1010, 1018, fn. omitted, superseded by statute on other grounds, as stated in In re Alexander P. (2016) 1 Cal.App.5th 1262, 1274.) Rather, “[a] man who has held the child out as his own and received the child into his home is a ‘presumed father.’ ” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802, fn. omitted (Jerry P.); see Fam. Code, § 7611, subd. (d).) In other words, “[p]resumed 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[.]’ ” (Jerry P., at pp. 801-802, fn. omitted.)

“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 T.R. (2005) 132 Cal.App.4th 1202, 1210 (T.R.).) We review a juvenile court’s paternity finding for substantial evidence. (In re Cheyenne B. (2012) 203 Cal.App.4th 1361, 1371.) “ ‘When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.’ ” (Ibid.)

B. Father Failed to Establish He Was Entitled to Presumed Father Status

The relevant question before us is whether father adequately demonstrated, under Family Code section 7611, subdivision (d), that he was entitled to presumed father status by “receiv[ing] the child into [his] home and openly hold[ing] out the child as [his] natural child.”

“In determining whether a man has ‘receiv[ed a] child into his home and openly h[eld] out the child” as his own [citation], courts have looked to such factors as whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental.” (T.R., supra, 132 Cal.App.4th at p. 1211.)

The evidence here did not demonstrate that father was a presumed father. It showed that he was married to someone else and was “messing” with mother for a few months. Mother said she told father she was pregnant, and he left her when she was two months pregnant and returned to his wife. Father confirmed he returned to his wife and said he had not seen mother or spoken with her since around the time she got pregnant. Father did not claim he helped mother with her prenatal care or paid any related expenses. (T.R., supra, 132 Cal.App.4th at p. 1211.) Moreover, it was undisputed that he was not present at the birth, and he was not listed as the child’s father on the birth certificate. We also note there was no evidence he sought to have his name placed on the birth certificate. (Ibid.)

Furthermore, although mother and father both said father held the child out as his own, there was no evidence as to “the number of people to whom he had acknowledged the child.” (T.R., supra, 132 Cal.App.4th at p. 1211.) Moreover, there was no child support order. Mother reported that father had not provided any financial support for the child. Father confirmed that he had not provided any money and had only provided clothes and diapers.

Father initially claimed the child lived with him from the time she was born until the day before the social worker interviewed him on May 21, 2021, but later stated mother took the child to the step-MGM three days prior to the interview. Father’s claim that the child lived with him was contradicted by mother’s statements. She initially reported that the child had been living with the step-MGM since she was born. However, at the detention hearing, the court asked mother if father had taken the child into his own home and lived with her and mother said, “No. [The child] stayed a night with him one time. That was it.”

In his reply brief, father concedes “the evidence was confusing.” He then reiterates that he and mother stated he openly held the child out as his own and asserts that he “took [the child] into his home for at least one night and provided some measure of support for her.” This claim, and the evidence as a whole, simply do not denote that father has “ ‘promptly come[] forward and demonstrate[d] a full commitment to his paternal responsibilities—emotional, financial, and otherwise[.]’ ” (Jerry P., supra, 95 Cal.App.4th at pp. 801-802.) Even if the trial court credited father’s statement that he took the child into his home for one night, such a negligible effort, coupled with the other minimal steps he took in caring for the child, do not demonstrate a full commitment to father’s paternal responsibilities as contemplated by the law.

We conclude substantial evidence supports the court’s determination that father was not a presumed father under Family Code section 7611, subdivision (d). The court properly found him to be an alleged father.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

[2] Mother is not a party to this appeal.