Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK70344, Sherri Sobel, Juvenile Court Referee.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
Jerome H. (Father) appeals from a September 15, 2009 order terminating parental rights to his daughter A.O., born in July 2006. Father, who was found not to be a presumed father, challenges the September 15, 2009 order on numerous grounds. We affirm the order because Father fails to establish any error. Had there been error with respect to the denial of presumed father status, Father does not show prejudice because he was afforded visitation and services as if he had been a presumed father.
BACKGROUND
During the first 15 months of A.O.’s life, her mother, C.O. (Mother), who has a history of substance abuse and prostitution, was incarcerated twice for a total of seven months. When Mother was incarcerated, she left A.O. with the maternal great grandmother. Before May 2008, when testing established Father as the biological father of A.O., Father and a man identified as Jerome C. claimed to be her biological father. For the first three months of A.O.’s life, Father bought diapers and formula for her, but he stopped providing for her when he was incarcerated in October 2006 for felony possession of marijuana for sale.
In October 2007, when Mother had an open criminal case and Father was incarcerated, the Los Angeles County Department of Children and Family Services (DCFS) detained A.O. and placed her with a maternal relative, Sharon J., where A.O. remains. Sharon is A.O.’s prospective adoptive parent with an approved home study.
The record describes Sharon J. as both a “maternal great aunt” and a “maternal cousin.”
Although the petition alleged that A.O. was a dependent of the juvenile court based on conduct by both parents, at the November 2007 jurisdictional and dispositional hearing, all the counts against Father, which were under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (failure to support), were stricken and dismissed. The juvenile court sustained the petition as to Mother, finding that A.O. was a dependent of the court pursuant to section 300, subdivision (b), based on Mother’s drug history, current drug use, and failure to provide regular care for A.O. The court found that, by clear and convincing evidence, the return of A.O. to her parents posed a substantial risk of danger and that Father, as an alleged Father, was not entitled to reunification services under section 361.5, subdivision (a), because services would not benefit A.O.
Unspecified statutory references are to the Welfare and Institutions Code.
Section 361.5, subdivision (a) provides in pertinent part: “Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.”
In February 2008, Father was still in prison, but Mother appeared in court for the first time and filled out a paternity questionnaire stating that Father was A.O.’s father. According to Mother, Father did not sign papers at the hospital, but he held himself out as A.O.’s father. Upon questioning by the court, Mother admitted that she and Father never lived together and that Father was a “visitor” with respect to A.O. The court found that Father was a biological father and an alleged father, but not a presumed father.
Father was released from prison in March 2008 and made his first court appearance in May 2008, when he filled out a JV 505 form regarding parentage in which he stated that he believed he was A.O.’s father and requested presumed father status based on his having told family and friends that he was A.O.’s father, carried her picture in his wallet, and provided food, diapers, and clothing for her. Father also claimed that the paternal grandmother and other paternal relatives had had visits with A.O. Father also offered to take custody of A.O. and to provide for her. The juvenile court did not find Father to be a presumed father, but declared him to be the biological father and granted him six months of family reunification services, including parenting classes, and monitored weekly visits. The court denied Father’s request for custody, finding that a return of A.O. to parental custody would pose a substantial risk of detriment to her well-being. The court did not order drug testing because it was informed that Father was testing in his parole program. The court ordered Father to comply with the conditions of his parole.
In June 2008, Father tested positive for drugs and the paternal grandmother told DCFS that Father was using marijuana. Thereafter, on June 9, 2008, the juvenile court ordered Father to attend individual counseling and a drug counseling program with random testing in which Father was to complete 10 consecutive random drug tests; if Father missed a test or tested positive, he was to complete a drug rehabilitation program.
DCFS reported in November 2008 that Father had tested negative for drugs after the one positive test in June 2008, but Father still had not attended individual counseling. At the November 7, 2008 court hearing, Father’s attorney informed the court that Father had completed a parenting program and was involved in individual counseling. The court found that the return of A.O. to parental custody would place her at substantial risk of detriment, but granted Father another six months of services. The court informed Father that if A.O. was not returned to him in six months, services would be terminated and the child referred for selection of a permanent plan, including adoption.
In January 2009, Father was arrested for possession of marijuana and returned to prison for violating parole; his release date was in September 2009. In March 2009, Father wrote a letter to the court asking for more time to complete the court-ordered programs and to obtain custody of A.O.
Father was still incarcerated on May 20, 2009, when he appeared at the court hearing and asked for more time for reunification services. The court terminated his services, explaining that Father had “asked for services as sort of a Kelsey S. father. He filed a JV 505 and asked to be declared the father and I declared him the biological father. He asked for services. And, under [Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), I granted them; however, he’s not been in nor is he now in a position nor has he filed for me to alter that to presumed father status. [¶] So at the [section 366.22, 18-month hearing] you can make whatever argument you want, but at this point he still has absolutely no status unless I find him presumed. [¶] So there’s your burden.” The court concluded that Father had not met the requirements for extending services to 24 months because Father was never the primary caretaker of A.O. on a regular basis, he did not make significant and consistent progress over the last 18 months, and was back in prison on a drug violation after completing a drug program. The court also made a finding that a return of A.O. to parental custody would create a substantial risk of danger to her well-being.
In Kelsey S., the court held that “[former Civil Code] section 7004, subdivision (a) and the related statutory scheme violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child’s biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child’s best interest. If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities - emotional, financial, and otherwise - his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Kelsey S., supra, 1 Cal.4th at p. 849.) Thus, a biological father may be accorded parental rights and become a Kelsey S. father when his attempt to achieve presumed father status is thwarted by a third party and he made a full commitment to his parental responsibilities. (In re Elijah V. (2005) 127 Cal.App.4th 576, 583.)
Father was released from prison on September 9, 2009, and appeared at the section 366.26 hearing on September 15, 2009. The court found that A.O. was adoptable and terminated parental rights. The court stated that Father “has never been able to establish presumed father status so he has no legal right to question the permanent plan of the child.” In terminating parental rights, the court also remarked that “there is no father named or listed on the birth certificate. Mother has named two people, although I believe it’s one person with two different names. Jerome [C.], and Jerome [H.] [Father] has had counsel throughout these proceedings and has not been able to [acquire] presumed father standing....”
Father appealed from the September 15, 2009 order.
DISCUSSION
“Under California dependency law, presumed fathers have greater rights than mere biological fathers. [Citation.] For instance, ‘only a presumed, not a mere biological, father is a “parent” entitled to receive reunification services....’ [Citation.]” (In re Jason J. (2009) 175 Cal.App.4th 922, 931–932 (Jason J.).) “A man is a presumed father if he meets the criteria of Family Code section 7611. Under that statute, ‘a man who has neither legally married nor attempted to legally marry the mother of his child cannot become a presumed father unless he both “receives the child into his home and openly holds out the child as his natural child.”’ [Citations.]” (Jason J., supra, 175 Cal.App.4th at p. 932.)
Father contends that the juvenile court erred in finding that he did not request presumed father status, erred in finding that he had Kelsey S. status but was not a presumed father, confused him with Jerome C., and violated his due process rights by terminating his parental rights without making a finding by clear and convincing evidence that A.O. would suffer detriment if returned to his custody.
Father’s contentions are not borne out by the record, and for that reason lack merit. In May 2008, when Father executed a JV 505 form, he requested that the juvenile court find him to be the presumed father. The court expressly stated at the May 2008 hearing that Father was a biological father only, not a presumed father. Accordingly, the record shows that the juvenile court ruled on Father’s request for presumed father status: the juvenile court unequivocally denied it.
Father argues that the court “confused [his] status by referring to him in several contradicting categories, ” including “‘father, ’” “‘declared father, ’” and “‘alleged and biological father.’” He also complains that the court even confused him with another man with the same first name. Father does not establish that these different descriptions of Father constitute “contradictory categories.” And Father fails to establish that he was prejudiced by the court’s comment at the conclusion of the section 366.26 hearing that the court believed that Jerome H. and Jerome C. may be the same person. The record shows that the juvenile court was aware of the history of the case. The record does not show that the court was confused about Father’s identity, his relationship to A.O., or his conduct throughout the proceedings.
The record also does not support Father’s argument that the juvenile court found him to be a Kelsey S. father, but he was not accorded presumed father status. Father never asked the court to accord him Kelsey S. status. On May 9, 2009, after the juvenile court terminated his services, the juvenile court made a remark that Father had been afforded services as “sort of a Kelsey S. father.” The court made the remark only in the context of explaining why it was not inclined to extend Father’s services for another six months. It is clear that the court was not, at that late date, making a finding that Father was a Kelsey S. father or a presumed father because Father made no such request. Rather, the court was explaining that Father had been afforded services notwithstanding his lack of status as a presumed father or a Kelsey S. father. In any event, Father fails to show that he was prejudiced by the court’s Kelsey S. remark.
The record also belies Father’s claim that the juvenile court did not make an adequate detriment finding before terminating his parental rights. According to the minute order for the jurisdictional and dispositional hearing, conducted when Father was incarcerated, the court found by clear and convincing evidence that the return of A.O. to her parents would create a substantial risk of danger to her well-being. Thereafter, in May 2008, November 2008, and May 2009, the juvenile court made detriment findings as to the parents based on a preponderance of the evidence. Father does not establish that the juvenile court intended to exclude him from detriment findings that, on their face, applied to both parents. “‘The detriment findings made at each review hearing preceding the section 366.26 hearing [citations] sufficiently establish parental unfitness to satisfy due process requirements.’” (In re Amanda D. (1997) 55 Cal.App.4th 813, 819.)
Even if the court’s detriment findings did not apply to Father, he does not establish any due process violation. As a biological father who had not achieved presumed father status, “‘his parental rights may be terminated based solely upon the child’s best interest and without any requirement for a finding of detriment or unfitness....’ [Citations.]” (Jason J., supra, 175 Cal.App.4th at pp. 933–934.)
In his brief, Father does not mount any challenge to the sufficiency of the evidence supporting the juvenile court’s finding that he was not a presumed father. As Father fails to establish any error or due process violation, the order terminating parental rights must be affirmed.
DISPOSITION
The order is affirmed.
We concur: ROTHSCHILD, J.JOHNSON, J.