In re J.H. CA3 ( 2014 )

Filed 1/14/14 In re J.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re J.H., a Person Coming Under the Juvenile
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES, C072201
Plaintiff and Respondent, (Super. Ct. No. JD232495)
v.
D.H.,
Defendant and Appellant;
J.H.,
Respondent.
Appellant D.H. appeals from the juvenile court’s orders denying him presumed
father status and dismissing him from the dependency case involving the minor J.H.
(Code Civ. Proc., § 581d; Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1606.)
1
He contends1 there is insufficient evidence to support the juvenile court’s orders denying
him presumed father status pursuant to Family Code section 7611, subdivision (d).2 We
conclude appellant failed to meet his burden of establishing presumed father status.
Accordingly, the trial court did not abuse its discretion in denying presumed father status
and we affirm the juvenile court’s orders.
BACKGROUND
The minor J.H. (born April 2012) and his mother tested positive for amphetamines
at his birth. Mother had no prenatal care and admitted to living with a group who used
drugs every day. She told the social worker appellant was not the minor’s biological
father, but was her live-in boyfriend. She also admitted to previously having her parental
rights terminated as to the minor’s half sibling.
In June 2012, the Sacramento County Department of Health and Human Services
(the Department) filed a dependency petition (Welf. & Inst. Code, § 300) alleging
jurisdiction based on mother’s substance abuse problems, mother’s failure to utilize
services through informal supervision, appellant’s substance abuse problems, and
mother’s failure to reunify with the minor’s half sibling. The petition and the detention
report referred to appellant as the minor’s father.3
1 In his opening brief, appellant also challenged the juvenile court’s ruling on the
voluntary declaration of paternity. He abandoned this contention after we took judicial
notice of the minor’s birth certificate showing appellant did not sign the certificate and
was not listed as the father.
2 Undesignated statutory references are to the Family Code.
3 References to appellant as the father in the detention report and the dependency
petition are not dispositive as to appellant’s status. Such statements were mistakes based
on an incomplete knowledge of the relevant facts. Once the nature of appellant’s
relationship became better understood, the Department opposed presumed father status
for appellant.
2
The detention report related an April 18, 2012, interview regarding the informal
supervision plan between the emergency response social worker, mother, and appellant.
The social worker told appellant that she was working only with mother; appellant
replied he and mother were a “package deal.” Mother was told a safety plan was
necessary because she failed to complete services in 2009. She agreed not to be left
alone with the minor and to allow the “paternal aunt” to supervise him.
Appellant said he met mother about six months ago, when she was living with
several other people. Mother moved in with him about two months ago, and she did not
use drugs while in his home. Appellant reported mother was getting prenatal care from a
Dr. Allen, and that he was paying for mother’s prenatal pills and doctor visits.
Mother and appellant were residing with the minor at the home of appellant’s
sister, K.H., who was the minor’s emergency care provider. On May 14, 2012, K.H.
reported mother had moved out of the home as part of the safety plan and appellant was
not home because he was helping mother move.
In a May 16, 2012, meeting with the social worker, mother agreed to enter a
residential treatment program while appellant remained with the minor at his sister’s
home. Mother left the program by May 21, 2012, and was living with appellant in the
home of appellant’s mother. Mother reported the minor was in “good hands” with
appellant’s sister. On May 25, 2012, K.H. told a social worker she had not seen or heard
from mother or appellant. In a June 6, 2012, interview with the social worker, mother
and appellant said the substance abuse services were too challenging. Appellant also
admitted to regularly using marijuana.
Mother told the social worker appellant was the minor’s father. Appellant and
mother are not married, but lived together before the minor was born. According to
mother, appellant was present at the minor’s birth, was named as the father on a birth
certificate, and signed a declaration of paternity. Appellant made the same
representations as mother regarding paternity.
3
Mother was married to another man, but they separated in December 2008. Her
husband lived in Nebraska.
At the June 26, 2012, detention hearing, the juvenile court heard testimony from
mother and appellant regarding the identity of the minor’s father. Mother testified
appellant “signed a declaration under penalty of perjury [that] he’s the father, and he’s on
the birth certificate.” Appellant was not the minor’s biological father, which mother
knew when the declaration was signed. Appellant testified to signing the declaration
when he knew he was not the biological father.
The juvenile court stated the declaration could be vacated and void because it “can
only be signed by those folks who believe he’s the biological parent.” And, if appellant
knew he was not the biological father when he signed the declaration, then “I don’t
believe he’s the presumed father. I think that voids the document.”
Appellant’s counsel replied: “[R]egardless of the paternity declaration my client
would be requesting presumed status in the alternative of the paternity declaration. He is
holding out the child as his own and wishes to be the father for all purposes. In speaking
with him before the hearing he said he wasn’t sure of everything he was signing, but he
wanted to be the father and is on the birth certificate.” The juvenile court asked for
points and authorities from both parties on whether appellant was entitled to presumed
father status pursuant to section 7611.
A jurisdiction/disposition report was filed in July 2012. Mother’s husband told the
social worker he lived in Nebraska for the last two-and-one-half years, and had had no
contact with mother during this time. He was trying to divorce mother, but was
unsuccessful in serving her with the paperwork.
On June 30, 2012, appellant was detained on a parole violation and outstanding
warrants for robbery, possession of narcotics paraphernalia, and possession of narcotics.
His release date was unknown, with the next court hearing scheduled for July 19, 2012.
Appellant has an extensive criminal record, including a 1990 conviction for delivery of a
4
substance falsely represented as a controlled substance, a 1992 second degree burglary
conviction, a 1998 conviction for possession of a firearm by a felon, a 2000 conviction
for corporal injury to a spouse or cohabitant, a 2002 conviction for bringing a controlled
substance into prison, 2008 convictions for possession of drug paraphernalia and assault
by means likely to produce great bodily injury, and a 2011 conviction for obstructing an
officer.
As of June 30, 2012, neither mother nor appellant had contacted the Department
regarding visitation. Mother reportedly had called appellant’s sister to check on the
minor. The Department concluded appellant remained an alleged father4, and it would be
detrimental to the minor to offer services to him.
Father subsequently filed a memorandum of points and authorities supporting
presumed father status, while the minor and the Department filed memoranda in
opposition. On August 14, 2012, mother’s husband filed a declaration that he is not the
minor’s father and does not wish to participate in the dependency.
The juvenile court held a pre-jurisdictional conference on paternity on
September 10, 2012. Appellant’s counsel told the juvenile court appellant, if called,
would testify he was told by the Department that as part of the safety plan, the minor
would go to his sister’s home rather than his home. Counsel told the juvenile court
appellant left his sister’s house because he thought it was in the minor’s best interest to
get mother into treatment. No witnesses were called. The juvenile court found appellant
does not warrant presumed father status because he “spent a very brief time with this
child,” and “his attempts to become a father are basically to assist the mother because he
has a relationship with the mother.”
4 An alleged father is a person who has not established biological paternity or
presumed father status. (In re Zacharia D. (1993) 6 Cal. 4th 435, 449, fn. 15.)
5
Continuing, the juvenile court stated: “[T]hey both signed a declaration under
penalty of perjury at the birth of the child when they knew he was not the biological
father. The mother was married to somebody else at the time. The child was released to
[appellant]’s sister because of the paternity declaration.” Mother and appellant left the
minor after a “very brief period [of] time” and continued to use controlled substances.
After noting appellant’s extensive criminal record, the juvenile court found appellant had
not “done much to show that he would be an appropriate father for this child,” and denied
paternity for appellant.
The juvenile court then dismissed appellant from the dependency, sustained the
allegations related to mother, and denied reunification services for mother.
DISCUSSION
Appellant contends the juvenile court erred in denying him presumed father status
pursuant to section 7611, subdivision (d). We disagree.
Section 7611, subdivision (d), provides for presumed parent status if the person
“receives the child into his home and openly holds out the child as his natural child.”
“A man who claims entitlement to presumed father status has the burden of
establishing by a preponderance of the evidence the facts supporting his entitlement.
[Citation.] ‘Although more than one individual may fulfill the statutory criteria that give
rise to a presumption of paternity, “there can be only one presumed father.” ’ [Citation.]”
(In re J.O. (2009) 178 Cal. App. 4th 139, 147.)
“[O]nly a presumed father is entitled to custody or a reunification plan.
[Citations.] An alleged father is not entitled even to appointed counsel, except for the
purpose of establishing presumed fatherhood. [Citations.] Indeed, it is generally said
that an alleged father’s rights are limited to ‘an opportunity to appear and assert a
position and attempt to change his paternity status . . . .’ [Citations.]” (In re J.O., supra,
178 Cal.App.4th at p. 147.)
6
An alleged father cannot satisfy section 7611, subdivision (d), by “constructively”
receiving a child into his home, but only by doing so physically. (Adoption of Michael H.
(1995) 10 Cal. 4th 1043, 1051; see Adoption of Kelsey S. (1992) 1 Cal. 4th 816, 829-830.)
However, an alleged father’s failure to bring the child physically into his home may be
excusable under section 7611, subdivision (d), if he sought to do so but was frustrated by
forces beyond his control, such as the mother’s actions to prevent it or the taking of
custody over the child by a county department of social services. (In re Andrew L. (2004)
122 Cal. App. 4th 178, 191; see Kelsey S., supra, 1 Cal.4th at pp. 849-850.)
Section 7611, subdivision (d), also requires an alleged father to “openly and
publicly admit paternity.” (Adoption of Michael H., supra, 10 Cal.4th at p. 1051.) An
alleged father does not hold out a child as his own when he is “unwilling to proclaim
paternity when there might have been some cost to him,” or he “show[s] an indifference
toward establishing or maintaining a parental relationship” with the child. (In re Spencer
W. (1996) 48 Cal. App. 4th 1647, 1654.)
For presumed father status, the alleged father must show he has “ ‘promptly
come[] forward and demonstrate[d] a full commitment to his parental responsibilities --
emotional, financial, and otherwise . . . .’ [Citations.] [And] ‘has done all that he could
reasonably do under the circumstances’ to demonstrate his commitment to the child.
[Citations.]” (In re Andrew L., supra, 122 Cal.App.4th at p. 191.)
Appellant has failed to meet his burden of establishing presumed father status.
Appellant did not receive the minor into his home. Even assuming appellant could
satisfy this requirement by living with the minor at appellant’s sister’s house (see S.Y. v.
S.B. (2011) 201 Cal. App. 4th 1023, 1033 [separated couple, living with the minor three
days a week and most weekends and holidays constitutes taking the child into one’s
home]), appellant spent no more than a few weeks with the minor. He moved out with
mother when she went to residential drug treatment. Once he moved out, appellant never
contacted the Department to arrange visits with the minor.
7
There is no credible evidence appellant held the minor out as his child. Appellant
and mother testified they knew he was not the biological father when he signed the birth
certificate. After the minor’s birth certificate was received in the record on appeal, we
learned appellant did not sign the certificate and he is not listed as the father. Further,
there is minimal evidence of appellant supporting the minor. Appellant’s sole financial
commitment to the minor was his claim he paid for mother’s prenatal pills and visits to
the doctor. However, this claim was at least partially contradicted by a statement from
the Sutter Hospital social worker that mother had no prenatal care.
During the three weeks he lived with the minor, appellant told the juvenile court
he fed the minor, changed his diapers, and walked him around the house at night to help
him sleep. However, this brief period of time spent with the minor is not sufficient to
establish presumed father status. (In re D.M. (2012) 210 Cal. App. 4th 541, 554 [“where
the child is a newborn detained within days of his [or her] birth, a man with no biological
relationship to the child and no marital relationship with the mother will be hard pressed
to prove an existing familial tie to the child. He may develop such a relationship over
time . . . . But we doubt that such a relationship springs full-blown from the womb”].)
Finally, we reject appellant’s contention the juvenile court based its decision on
improper considerations, namely his criminal record and substance abuse. “No rule or
decision is better or more firmly established by authority, nor one resting upon a sounder
basis of reason and propriety, than that a ruling or decision, itself correct in law, will not
be disturbed on appeal merely because given for a wrong reason.” (Davey v. Southern
Pacific Co. (1897) 116 Cal. 325, 329.) This rule applies with equal force to dependency
cases. (In re Jonathan B. (1992) 5 Cal. App. 4th 873, 876.)
Appellant’s contributions to the minor’s life were minimal at best. After living
with the minor for the first three weeks of his life, appellant left the minor to live with
mother and did not visit him again. As the juvenile court correctly found, these actions
may support an intent to maintain a relationship with mother, but they are inconsistent
8
with a relationship with a child that is accorded presumed father status. It is clear from
this record appellant did not come forward and demonstrate a full commitment to his
parental responsibilities. We conclude the juvenile court did not abuse its discretion in
denying appellant presumed father status.
DISPOSITION
The juvenile court’s orders are affirmed.5
HOCH , J.
We concur:
RAYE , P. J.
ROBIE , J.
5 The Department’s request for judicial notice filed in this court December 30, 2013,
is denied as moot.
9