Opinion
A163047
09-08-2021
DAMIEN F., Petitioner, v. SUPERIOR COURT FOR THE COUNTY OF CONTRA COSTA, Respondent CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU et al., Real Parties in Interest.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J21-00162
BURNS, J.
Damien F. petitions for writ relief, challenging the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing for his biological daughter, nine-month old P.P., and declining to provide him reunification services. We deny Damien's petition and his request for a stay of the section 366.26 hearing.
Undesignated statutory references are to the Welfare and Institutions Code.
Background
A.
The Uniform Parentage Act (Fam. Code, § 7600 et seq.) distinguishes between “ ‘alleged,' ” “ ‘biological,' ” and “ ‘presumed' ” fathers. (In re J.L. (2008) 159 Cal.App.4th 1010, 1018, superseded by statute on other grounds.) An alleged father is a man who may be the father of a child but has not established biological paternity or presumed father status. (Ibid.) A biological father is one who has established genetic paternity but has not met the statutory requirements for presumed father status. (Ibid.) “The distinction is important because only a presumed father is entitled to custody or a reunification plan.” (In re J.O. (2009) 178 Cal.App.4th 139, 147.)
“Presumed father status is governed by [Family Code] section 7611, which sets out several rebuttable presumptions under which a man may qualify for this status, generally by marrying or attempting to marry the child's mother or by publicly acknowledging paternity and receiving the child into his home. [Citations.] Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611. On the contrary, presumed father status is based on the familial relationship between the man and the child, rather than any biological connection.” (In re J.L., supra, 159 Cal.App.4th at p. 1018.) A presumed father is one “who ‘promptly comes forward and demonstrates a full commitment to his paternal responsibilities-emotional, financial, and otherwise[.]' ” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.)
B.
P.P. was two months old when her mother, who had preexisting mental health and substance abuse challenges, began experiencing auditory hallucinations. By the time P.P. was three months old, Mother relapsed. She began regularly using methamphetamine, alcohol, and marijuana while caring for P.P. She also left the infant in the care of someone she knew similarly used methamphetamine. The Contra Costa County Children and Family Services Bureau (Bureau) filed a petition alleging P.P. came within section 300, subdivisions (b) and (j), due to Mother's chronic substance abuse and mental health problems. The petition also alleged that, in 2013, Mother's parental rights were terminated after she failed to reunify with P.P.'s half sibling. The Bureau identified Damien as P.P.'s alleged father.
Mother is not a party to this writ proceeding.
The Bureau's detention/jurisdiction report indicated Mother and Damien had a history of domestic violence, including when Mother was pregnant with P.P. Shortly before P.P.'s birth, Mother obtained a three-year restraining order against Damien.
Damien appeared (via Zoom) at the detention hearing and was appointed counsel. Damien did not ask for custody but requested paternity testing, which the juvenile court ordered. The court denied visitation with Damien and ordered P.P. detained in foster care.
C.
The paternity test results showed a 99.9 percent likelihood that Damien F. is P.P.'s father. Damien immediately filed a request to change a court order (§ 388), asking the court to grant visitation-so that Damien could “establish a relationship with [P.P.]” and eventually raise her. The juvenile court scheduled the request to be heard at the same time as the jurisdiction/disposition hearing.
In the Bureau's disposition report, the social worker reported that P.P. had been placed in foster care with another half-sibling, who had also recently been removed from Mother's custody. Given Mother's history of failing to reunify with her other children, the Bureau recommended that she be bypassed for reunification services, pursuant to section 361.5, subdivisions (b)(10)-(11), (b)(13).
The social worker indicated Damien was not a presumed father. Although he and Mother had been romantically involved and lived together for some time while Mother was pregnant, Damien was not present when P.P. was born and is not listed as her father on her birth certificate. Damien only recently began telling others that P.P. was his child, after receiving the paternity test results. Damien has not provided any financial support to P.P. and has never met her.
Damien admitted a history of substance abuse, including heroin addiction. He told the social worker that he had been sober for 20 years and reported taking methadone to address his addiction. However, Damien also said that he completed two drug treatment programs-most recently, after a relapse about 10 years ago. Mother suggested Damien was using while they were romantically involved.
Damien denied Mother's domestic violence allegations and reported being homeless. He was unwilling to accept the housing offered to him by local housing agencies, explaining that it was unsuitable for children. He also told the social worker that he had a medical condition-Cryptococcus-a rare fungal infection that reportedly “ ‘eats at your brain.' ” When the social worker first offered Damien service referrals, he indicated that he did not want to participate in services unless he was certain that P.P. was his child. After receiving the paternity results, however, Damien denied any issues with substance abuse, domestic violence, or anger management. He agreed to drug test and accept housing assistance. The Bureau's report indicated that, at his first test, Damien tested positive for marijuana and methadone. Ten days later, Damien's test results were clean.
The Bureau indicated that Damien, as a biological father, was not entitled to reunification services and it did not recommend discretionary services. Relying on Damien's history of housing instability, domestic violence, and substance abuse, as well as his inability or unwillingness to address the latter issues, the social worker believed P.P. would not benefit if the juvenile court ordered placement or visitation with Damien. The social worker was also concerned about Damien's medical condition and P.P.'s fear of strangers.
D.
At the jurisdiction/disposition hearing, the juvenile court sustained the section 300 petition. With respect to his section 388 request, Damien's counsel asked the court to elevate Damien's status to biological father and requested visitation and reunification services.
Damien called the social worker to testify. The social worker said that Damien contacted him, after the genetic testing results were received, expressing his desire to raise P.P., and asking what he needed to do to make that happen. However, Damien admitted he was not involved in raising any of his three other children-their mothers had done so, without any formal custody order. The social worker asked Damien to provide releases to the Bureau-so he could verify Damien's methadone prescription and that his medical condition was not contagious. Damien declined. On cross-examination, the social worker testified that parents who are prescribed methadone usually consistently test positive for the substance. The social worker testified that Damien had become agitated and yelled at him during a virtual planning meeting, which Mother also attended.
Damien testified that he had three children in addition to P.P.-two adults and one teenager. All three lived outside of California. Damien said he participated in raising his older children but could not answer questions about their daily lives. When he was asked, on cross-examination, about child welfare proceedings involving his teenaged daughter, he admitted he had not attended any of the hearings and that he does not provide any financial support. The last time Damien saw any of his other three children was in 2018.
Damien testified that he “absolutely” wants to raise P.P., but he also admitted that he had done nothing to try to see P.P. during the time she was in Mother's custody. He blamed this on the restraining order, which prohibited him from contacting Mother due to domestic violence that Mother alleged occurred while she was pregnant with P.P. Damien denied any violence. Damien admitted being upset during a virtual meeting with the social worker but denied yelling at anyone.
From the time of her pregnancy, Damien believed that Mother was carrying his child. Nonetheless, he first learned of P.P.'s birth-from his own mother-when P.P. was about two months old. When asked if he was using drugs during the time he was living with Mother (and she was pregnant with P.P.), Damien initially responded, “I don't feel that that's any of your business.” He later said he was using methadone and marijuana. When asked if he was using anything else, Damien replied, “Not really.”
The juvenile court found Damien did not qualify as a presumed father and declared him P.P.'s biological father. The court otherwise denied his section 388 petition, concluding Damien was not credible and had not shown visitation or reunification services were in P.P.'s best interests. The court ordered P.P. removed from Mother's custody, denied reunification services to both parents, and set a section 366.26 hearing.
Discussion
Damien challenges the juvenile court's denial of his request for visitation and reunification services. We conclude the juvenile court did not abuse its discretion. (See In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Elijah V. (2005) 127 Cal.App.4th 576, 589.)
1.
Only a presumed father is entitled to custody and reunification services (including visitation). (§ 361.5, subd. (a); In re Zacharia D. (1993)6 Cal.4th 435, 451, 454; In re A.J. (2015) 239 Cal.App.4th 154, 163.) Juvenile courts have discretion to provide reunification services to a biological father if the court finds that granting him services would benefit the child. (§ 361.5, subd. (a); Francisco G. v. Superior Court (2016) 91 Cal.App.4th 586, 597.)
Section 388 allows a parent to petition the juvenile court to modify a previous order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1).) The moving party bears the burden of proof to show, “by a preponderance of the evidence, changed circumstance or new evidence and that the modification would promote the best interests of the child.” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446.)
2.
We agree with the Bureau that Damien presented no evidence to support his claim that providing him with reunification services and visitation would benefit P.P.
The juvenile court did not find Damien's testimony credible. We must defer to that finding. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) Discounting Damien's denials, the record shows that Damien engaged in domestic violence against Mother while she was pregnant even though he “absolutely” believed she was carrying his child, that Damien's substance abuse challenges may remain ongoing, and that he is unwilling (or unable) to admit or address either issue. Furthermore, Damien and P.P. do not have a parent-child relationship; the two have never even met.
Damien blames his failure to act as a parent on the restraining order prohibiting him from contacting Mother. Yet, there is no evidence the restraining order forbids Damien from having contact with P.P. As the juvenile court pointed out, Damien could have sought to establish a relationship with P.P. in family court.· Instead, he waited to come forward only at the detention hearing and even then, despite “absolutely” believing P.P. was his child, he declined to engage in services or otherwise show his commitment to his parental responsibilities.
The juvenile court did not abuse its discretion by denying Damien's section 388 petition and finding that it was not in P.P.'s best interests to extend Damien reunification services and visitation. (See In re Zacharia D., supra, 6 Cal.4th at pp. 455-456 [juvenile court did not abuse discretion by denying reunification services and visitation when father did “almost nothing to develop a relationship with [his child]”]; In re D.M. (2012) 210 Cal.App.4th 541, 554 [“[a] biological father is not entitled to... reunification services merely because he wants to establish a personal relationship with his child”].)
In re Julia U. (1998) 64 Cal.App.4th 532 (Julia U.) does not compel a contrary result. In Julia U., an order terminating a biological father's parental rights was reversed because the juvenile court failed to allow him to participate in the process, failed to appoint counsel to represent him until after his paternity was established, and never considered whether placement with him was viable. (Id. at p. 544.) In that case, the court “set a section 366.26 hearing on the same day [the father] first appeared in court and paternity testing was ordered. One week later, the court terminated all reunification services in the case, including any for [the father]. The court did not wait to determine if the testing revealed [he] was Julia's biological father.” (Id. at p. 543.)
Here, unlike in Julia U., there was no delay in involving Damien in the dependency proceedings or in establishing his paternity. In fact, the juvenile court provided notice and counsel to Damien from the time of the detention hearing, before his paternity was established. The court also declared Damien P.P.'s biological father before a section 366.26 hearing was set. Finally, the juvenile court gave Damien an opportunity to attempt to establish that reunification services were in P.P.'s best interests. Damien simply failed to make the requisite showing.
Disposition
Damien F.'s writ petition is denied on the merits. His request for a stay is also denied. Because the section 366.26 hearing is set for October 28, 2021, our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
We concur: JACKSON, P.J., SIMONS, J.