Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 26531-01
BUTZ, J.Marc A. (appellant), the alleged father of Branden C., appeals from the juvenile court’s order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends the court erroneously denied him presumed father status. We shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On August 14, 2006, the Shasta County Department of Social Services (DSS) filed a section 300 petition on behalf of then three-year-old Branden C. (the minor), alleging his mother failed to protect him and failed to provide for his support when she was hospitalized on an involuntary mental health hold. (§ 5150.) At the time of the petition, appellant was in jail.
On October 23, 2006, the juvenile court conducted a paternity investigation, during which, the mother identified two men as possibly being the minor’s biological father--her then husband and a man with whom she had a brief one-day encounter and had not seen since. No man had signed a paternity declaration and the birth certificate listed the father as “unknown.” The mother identified appellant only as her boyfriend, someone she met when she was pregnant and with whom she was living when the minor was born.
On January 5, 2007, the court accepted the social worker’s recommendation, denied “the parents” reunification services, and immediately set a section 366.26 hearing to terminate parental rights. Appellant subsequently appeared at DSS requesting reunification services.
On September 26, 2007, appellant filed a section 388 petition for modification claiming he was the minor’s presumed father and requesting reunification services. That same day, the juvenile court heard evidence and denied appellant’s petition before excusing him from the section 366.26 proceedings. The following summary of relevant facts is taken from that hearing.
Appellant met the minor’s mother in 2002 when she was already four months pregnant with the minor. The mother moved into appellant’s home the day they met. Appellant testified that after he met the mother, he took her to her prenatal appointments. On February 19, 2003, she went into labor and the minor was born in appellant’s car on the way to the hospital.
At the hospital, appellant refused to sign a declaration of paternity because he knew he was not the minor’s biological father. When appellant asked the mother whom she listed on the birth certificate as the father, she told him she had indicated the minor was the product of a rape so she would not have to pay the hospital bills.
Appellant testified that he told a hospital employee he would pay the hospital bill. Appellant made no effort to have his name legally added to the birth certificate. Two days later, appellant and the mother returned home with the minor, where they lived together until appellant was arrested in May 2006.
While they were living together, the minor went with appellant and the mother to family holidays and events. Appellant’s sister testified that their family frequently saw the minor and appellant together. She testified that appellant never told her whether the minor was actually his son. Rather, the family simply understood that appellant has “always been [the minor]’s dad and that’s the end of it. There’s never been any questions.”
Appellant testified that, while they were living together, he made money buying and selling real estate, and had a “million dollar” contract with Sierra Pacific Industries. He also owned a piece of property, which he referred to as “acreage,” and two homes. Appellant purchased his own medical insurance, and claimed he was responsible for providing the minor’s food, clothing, and toys. Appellant even paid for a nanny to assist with the minor’s care during the first six months of his life.
Nevertheless, while they lived with appellant, the minor and the mother continued to live on public assistance, including MediCal. Appellant’s name was not included on any of the paperwork the mother completed to obtain public assistance, and appellant never considered obtaining medical insurance for the minor. And although appellant denied it, on June 7, 2006, DSS records show there was a referral regarding the minor, indicating appellant had abused the mother and the home was without utilities or food.
During this period, the mother gave birth to appellant’s biological son, who died of Sudden Infant Death Syndrome when he was one month old. After his death, the mother became emotionally unstable, leaving the home, sometimes for days at a time. Appellant remained in the home with the minor while the mother came and went.
Then, on May 22, 2006, appellant assaulted a neighbor and was arrested. Appellant went to jail, but the mother and the minor continued to live in his home for at least a few months.
Appellant testified that while he was in jail he provided the mother and the minor with money “off [his] books,” and through his sister. Appellant also said that he talked to the mother every day from May until sometime in August 2006 when he stopped hearing from her. Appellant explained that the phone had been turned off in one house and the mother was not answering the phone in the other house.
Appellant’s sister also testified that she gave money to the mother, though it is not clear whether that was her money or appellant’s.
Appellant also testified that around this same time, he called his house and the phone was answered by someone he had never met before, someone who claimed to be renting the house. According to appellant, it was this unknown person who told him that the minor had been detained by DSS. Appellant contacted his sister, and asked her to find out if this was true. Appellant’s sister spoke with a social worker, and confirmed the minor’s detention.
Once appellant learned that the minor had been detained, he claims he called DSS from jail “four or five times a week,” but his collect calls were refused. He said he even wrote DSS a letter using an address he found in the phone book but he never got a response and the letter was never returned. Appellant’s sister also testified that she made numerous attempts to obtain information about the minor but was refused.
Appellant was released from jail on November 15, 2006, at approximately 3:30 p.m. According to his testimony, appellant walked directly “across the street” to a family services visiting center and asked “is this the place where I can find out if my son is in [child protective services]?” Appellant was given the address for “LINCS” and told they would be able to help him.
Appellant did not go to LINCS, but met the mother at his neighbor’s house. That night, appellant and the mother talked about “going to family services to file whatever papers [they] needed to do the next day with regards to [the minor].” At some point they had sex. He claimed it was consensual; she claimed it was rape. In any event, the mother left and called her boyfriend. The following morning, appellant was arrested for raping the mother and was returned to jail, where he remained until the rape charges were dismissed in March 2007.
On March 22, 2007, appellant was again released from jail. Appellant walked “across the street” a second time and was given the same information he was given in November 2006. With that information, appellant “went home to wait for [his] sister to get home to see what [he] needed to do to file whatever kind of papers [he] needed to do.”
The following day, appellant met with the same social worker that his sister spoke to in September 2006, but did not request reunification services until April 2007, when he claimed he had been the minor’s primary caregiver for two years. Shortly thereafter, appellant began visiting with the minor.
As part of the parent-child evaluation prepared in this matter, J. Reid McKellar, Ph.D., interviewed appellant, the minor, and one of the minor’s foster parents. Dr. McKellar also observed one of appellant’s visits with the minor, during which Dr. McKellar noted that the minor greeted appellant “enthusiastically,” but concluded that the interaction between the minor and appellant was “similar to what one would expect with a playful uncle, or baby sitter [sic].”
After considering the evidence, including a thorough review of appellant’s criminal record, the court denied appellant’s section 388 petition for modification and excluded him from the courtroom before terminating parental rights. The court ruled that “looking at the totality of the circumstances,” appellant failed to prove by a preponderance of the evidence that he was the minor’s presumed father.
In so ruling, the court found that appellant failed to assist the mother in obtaining prenatal care, did not pay for the pregnancy-related medical bills, took no action to keep the minor off of welfare, took no action to obtain custody of the minor, and made no effort to have his name added to the minor’s birth certificate.
DISCUSSION
“In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) A natural father is one who has been established as a child’s biological father. (Id. at p. 801.) Use of the term “natural father” means that while the man’s biological paternity has been established, he “has not achieved presumed father status as defined in [former] Civil Code section 7004.” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)
“Presumed fatherhood, for purposes of dependency proceedings, denotes one who ‘promptly comes forward and demonstrates a full commitment to . . . paternal responsibilities--emotional, financial, and otherwise.’” (In re Jerry P., supra, 95 Cal.App.4th at pp. 801-802.) A natural father can be a presumed father, but is not necessarily one; and a presumed father can be a natural father, but is not necessarily one. (Id. at p. 801.) Appellant argues he falls into the latter category.
“In order to become a ‘presumed’ father, a man must fall within one of several categories enumerated in Family Code section 7611. Under Family Code section 7611, a man who has neither legally married nor attempted to legally marry the child’s natural mother cannot become a presumed father unless (1) he receives the child into his home and openly holds out the child as his natural child, or (2) both he and the natural mother execute a voluntary declaration of paternity.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595.)
On appeal, appellant claims there was insufficient evidence to support the trial court’s decision to deny him presumed father status.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, the appellate court “‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find’” in favor of the judgment. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L.,at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) And the reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
In this case, the record contains some evidence to support a finding that appellant held the minor out as his own child. For example, the minor lived with appellant for the first three years of his life, and appellant took the minor to family events where appellant’s family treated the minor as though he were appellant’s son.
But more than mere acknowledgement of a parent-child relationship is required to establish this element. Establishing paternity by legal action, assuming financial obligations of support, establishing and maintaining an emotional relationship, and timely asserting legal rights to visitation and custody are but some of the indicia of assuming parental responsibilities that characterize the parent-child relationship necessary to attain presumed father status. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1355; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1654.)
Considering the totality of the circumstances, the record in this case does not reflect appellant demonstrated a “consistent commitment to assume the burdens of parenthood.” (In re Spencer W., supra,48 Cal.App.4th at p. 1653.) It is commendable that, while they were together, appellant treated the minor as his own son, and that appellant is now making efforts to establish his parentage status. Those actions, however, fall short of manifesting the requisite commitment to a minor so as to attain the status of presumed father. (Id. at pp. 1653-1655.)
The evidence presented does not show that appellant achieved presumed father status under Family Code section 7611, subdivision (d). Resolving all conflicts in favor of the prevailing party, as we must, the evidence shows appellant allowed his friends and family to believe the minor was his son, but was apparently unwilling to proclaim paternity when there may have been some cost to him (i.e., reduced welfare payments). This, despite the fact that he had a “million dollar contract” with Sierra Pacific Industries, made additional money buying and selling real estate, and afforded a nanny for the first six months of the minor’s life.
Appellant never considered buying health insurance for the minor. He never took formal steps to place his name on the birth certificate or legitimize his relationship with the minor through legal action. While in jail, appellant made no effort to visit with the minor even though he talked to the mother “every day” for the first three months, and visited with his sister every week.
When he learned the minor had been detained by DSS, appellant made minimal efforts to locate the minor. Upon his release from jail, appellant obtained the necessary contact information for LINCS, but reoffended instead of seeking the minor. Thereafter, he waited another five months before finally contacting LINCS to claim presumed father status.
In sum, we conclude that, considering the totality of the circumstances, appellant failed to sustain his burden of demonstrating he was the presumed father of the minor. Accordingly, the order by the juvenile court denying appellant’s request for presumed father status was supported by substantial evidence. There was no error.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: BLEASE, Acting P.J., HULL, J.