Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV060162
NEEDHAM, J.
Kenneth T. appeals from an order denying his request for presumed father status. (Fam. Code, § 7611, subd. (d).) We will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
The minor, C.C., is the daughter of Brenda S. (Brenda). Appellant Kenneth resides with Brenda and purportedly helped raise C.C., but he is not C.C.’s biological father.
A. First Dependency Petition
In July 2006, a Welfare and Institutions Code petition was filed, alleging that Brenda was neglecting C.C. C.C. was temporarily placed in foster care, Brenda received court-ordered services, and the dependency was terminated in October 2007. Although Kenneth had been living with Brenda and C.C., at no time during the dependency proceeding did he seek presumed father status or visit C.C. in foster care.
B. Second Dependency Petition
In March 2008, the Humboldt County Department of Health and Human Services (Department) filed a second petition, alleging C.C. was a child within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (g). As to subdivision (b), it was alleged that C.C. had suffered, or was at substantial risk of suffering, serious physical harm and illness because Brenda abused controlled substances and alcohol, which periodically rendered her incapable of providing appropriate care and supervision. In particular, the petition alleged Brenda became drunk on March 7, 2008, and attacked her roommate (Kenneth), which resulted in her arrest. As to subdivision (g), it was further alleged that C.C. was left without provision for support in that the location of her father was unknown and Brenda’s incarceration rendered Brenda unable to care for her.
When the police responded to Brenda’s residence on March 7, 2008, they notified Child Protective Services, who took C.C. into custody because Kenneth was not her legal guardian and he had an “extensive criminal record with offenses relating to child cruelty.” C.C. was ordered detained on March 12, 2008. On March 25, 2008, the court ordered placement of C.C. with her maternal grandmother.
At the jurisdictional hearing on April 1, 2008, Kenneth asserted he was C.C.’s father and requested appointed counsel. The court appointed counsel and continued the matter.
On April 7, 2008, Kenneth filed a Statement Regarding Parentage on Judicial Council form JV-505. He checked the box asserting that he believed he was C.C.’s parent and requested that the court enter a judgment of parentage. On the form, Kenneth alleged he had been raising C.C. since she was born, she called him “Daddy,” he helped support her financially, and she spent holidays and most weekends with members of his family. Kenneth acknowledged he was not C.C.’s biological father, but was the only father she had known, he loved her and cared for her like she was his own, and he was going to marry Brenda so they could have a “good loving family.” Kenneth’s JV-505 form further alleged that C.C.’s mother and grandmother called Kenneth C.C.’s dad, and Kenneth told that to his ex-wife, brother, and biological children. According to the JV-505, Kenneth participated in activities with C.C., including taking her to church and telling her bedtime stories.
At the continued jurisdictional hearing on April 8, Kenneth’s attorney made an oral motion to have Kenneth declared a presumed father. C.C.’s counsel objected, and Kenneth’s attorney indicated a written motion would be filed. The court made its jurisdictional findings, sustained the Department’s petition, found that C.C. was a person described in Welfare and Institutions Code section 300, subdivisions (b) and (g), and set a dispositional hearing for April 21, 2008.
Brenda and Kenneth married on April 8, 2008.
On April 10, 2008, Kenneth filed a motion to be declared C.C.’s presumed father under Family Code section 7611, subdivision (d). A copy of Kenneth’s April 7 JV-505 was attached to the motion.
On April 11, 2008, C.C.’s counsel filed an opposition to Kenneth’s request for presumed father status, contending that Kenneth had not always been a positive influence in C.C.’s life. According to C.C.’s attorney, a “good chunk of 2007” was spent reunifying C.C. with Brenda after the juvenile court had sustained allegations against her under Welfare and Institutions Code section 300, subdivision (g); C.C.’s attorney questioned where Kenneth was during that period of reunification, and where he was when Brenda was using methamphetamine and failing to provide sufficient support.
The Department filed its disposition report on April 21, 2008. According to the report, Brenda and Kenneth had a “good marital relationship and both parents have a loving relationship with the child.” The Department recommended that C.C. be a dependent of the juvenile court and that Brenda be offered reunification services, with placement in foster care.
On May 22, 2008, the Department filed a supplemental petition pursuant to Welfare and Institutions Code section 387 (section 387 petition), requesting a change of placement closer to Brenda and Kenneth, so they could have more frequent and longer visits with C.C.
The Department filed an addendum report on May 28, 2008. Social worker Bonnie Owen advised that she had learned from the previous social worker, Donnie Sanches, that Kenneth had been “in [C.C.]’s life for most of her life.” Although Kenneth visited Brenda and C.C. while they lived at the Multi-Assistance Center and was a big support for Brenda as she went through the treatment program, Kenneth did not visit C.C. while she was in foster care. As of the date of the report, Owen had not met Kenneth.
Kenneth’s request for presumed father status, as well as the Department’s section 387 petition to change the placement closer to Kenneth and Brenda, were heard in conjunction with the dispositional hearing on May 28, 2008. The Department noted its agreement with Kenneth’s request for presumed father status, but counsel for C.C. opposed it.
Social worker Owen testified that she had now met Kenneth, as he was actively involved in a team decision meeting in preparation for the dispositional hearing. She noted that he had not asked for visitation of C.C., but she believed he had been visiting her. Kenneth had expressed his desire to participate in the case plan for C.C., and Owen believed it was in C.C.’s best interests that he do so, so both Brenda and Kenneth could get the couples counseling and domestic violence counseling they needed. According to Owen, the Department viewed Kenneth as C.C.’s father. She acknowledged she had never seen Kenneth and C.C. together, but nonetheless thought it would benefit C.C. to have Kenneth as a father figure if Brenda successfully reunified with her. Owen also testified that if the court ordered the Department to provide services to Kenneth, even though he remained an alleged father and was not awarded presumed father status, the Department would comply and provide those services.
Kenneth testified that he has known C.C. since Brenda was pregnant with her. He is the only one C.C. calls “Daddy.” Every Saturday and Sunday, she spends time with his children and granddaughter, who call her “Sissy.” For about a year Kenneth, Brenda and C.C. have lived in their current apartment, where C.C. has her own bedroom. Kenneth married Brenda because he loves her and wants to be with her. Further, Kenneth testified, he loves C.C. “with all my heart just like she’s mine” and had been visiting her. He was willing to participate in services, including parenting classes and domestic violence counseling, in order to better his family. Kenneth recalled that, after the March 7, 2008 incident (in which Brenda was arrested for assaulting Kenneth), he asked the police if he could take care of C.C. but was told he could not unless he was the “real father.” That prompted him to seek presumed father status, he claimed, as previously he had not known his rights. By Kenneth’s estimation, he has been “clean and sober” for three years and would support Brenda in her recovery from substance abuse.
On cross-examination, Kenneth testified that his conviction for child cruelty involved his own daughter, but he denied that he had, in fact, been cruel to her. Kenneth does not have custody of either of his children, but he has visitation rights. He did not think that C.C. was at risk the night Brenda was arrested.
After hearing counsel’s argument, the juvenile court denied Kenneth’s motion for presumed father status. The court concluded the evidence was insufficient to establish that Kenneth qualified for presumed father status, but opined that Kenneth should receive services under the circumstances.
The court turned to the Department’s section 387 petition and, by the parties’ agreement, granted it. The court then proceeded to the dispositional hearing.
Following the presentation of evidence and argument, the juvenile court declared C.C. a dependent of the court, removed her from Brenda’s custody and placed her in a suitable foster home, ordered that Brenda receive reunification services, and ordered the Department to provide “normalization services” and services “that support the overall family” to Kenneth.
Kenneth’s notice of appeal states that he appealed from the following: “On May 28, 2008, Father’s motion to have Alleged Father declared Presumed Father was denied.” In a dependency proceeding, the dispositional order is the final judgment and the first appealable order. (In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703; In re Dolly D. (1995) 41 Cal.App.4th 440, 444, fn. 1.) We interpret the notice of appeal broadly and conclude we have jurisdiction to decide the matter on appeal.
II. DISCUSSION
We review the denial of a request for presumed father status for substantial evidence. (See Miller v. Miller (1998) 64 Cal.App.4th 111, 117-118 (Miller).) In so doing, we view the evidence in the light most favorable to the juvenile court’s ruling, and we resolve conflicting evidence and competing inferences in favor of the court’s findings. (Ibid.)
Dependency law recognizes three types of fathers: alleged, biological, and presumed. (Welf. & Inst. Code, § 361.5; In re T.R. (2005) 132 Cal.App.4th 1202, 1208; In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) An alleged father is one who may be the father of the child, but has not established biological paternity or presumed father status. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) A biological father is one whose paternity has been established, but he has not met the statutory criteria for a presumed father. (Ibid.) A presumed father, whether the biological father or not, is one who meets one or more criteria in Family Code section 7611. (Id. at p. 449.) A presumed father may be, but need not be, the biological father. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.)
The law also recognizes “de facto” fathers, who have assumed the parental role on a day-to-day basis. (In re T.R., supra, 132 Cal.App.4th at pp. 1208-1209.) Kenneth does not contend in this appeal that he is C.C.’s de facto father.
The distinction between an alleged father, a biological father, and a presumed father may be significant, because it determines the father’s rights and the extent to which he may participate in the proceedings. “Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan.” (In re T.R., supra, 132 Cal.App.4th at p. 1209; Welf. & Inst. Code, §§ 317, subd. (a), 361.2, subd. (a), 361.5, subd. (a).) In the matter before us, however, the juvenile court ordered, and the Department agreed to provide, certain services to Kenneth even though he was not a presumed father.
Kenneth asserts he is a presumed father under Family Code section 7611, subdivision (d), which states that a man may be presumed to be the natural father of a child if he “receives the child into his home and openly holds out the child as his natural child.” (Italics added.) As the person claiming presumed father status, Kenneth had the burden of establishing the statutory requirements. (In re T.R., supra, 132 Cal.App.4th at p. 1210.)
In determining whether the requirements have been met, courts have considered factors such 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.” (In re T.R., supra, 132 Cal.App.4th at p. 1211.)
Here, Kenneth lived with Brenda and claimed to be present at C.C.’s birth, but he did not claim paternity then or have his name put on the birth certificate. Nor is there evidence he paid pregnancy and birth expenses. During the first dependency case, he took no action to establish paternity or presumed father status, and he did not visit C.C. while she was in foster care. Although C.C. and some of Kenneth’s family members called him C.C.’s “Daddy,” there was no direct evidence he openly held out C.C. to be his natural child in the community. After the second dependency action had commenced in March 2008 – only about two months before the ruling on Kenneth’s motion – Kenneth visited C.C., expressed a desire to participate in her care, and contributed to her support. Nonetheless, there was substantial evidence that Kenneth did not openly hold out C.C. as his own natural child within the meaning of section 7611, subdivision (d). (See In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650-1651 [no presumed father status for boyfriend who lived with child’s mother when child was born and was present at child’s birth, told his friends, relatives, and neighbors that he was child’s father and that the child called him “Daddy,” but did not seek to have his name placed on the birth certificate, took no legal action during the two years he lived with the child and the mother to establish paternity, told a social worker he was not the child’s father, and when the child was placed with a relative during the mother’s incarceration did not visit the child, assert paternity, or provide monetary support].)
The facts in In re Spencer W., supra, 48 Cal.App.4th 1647, are not identical to the matter at hand, because during the second dependency proceeding Kenneth visited C.C., provided monetary support, and participated in the Department’s team decision meeting. A reasonable trier of fact could nonetheless conclude, based on the evidence as a whole, that Kenneth did not openly hold out C.C. as his own natural child.
Kenneth asserts that the following evidence shows he should be considered C.C.’s presumed father: he met Brenda about a year before C.C. was born; he cared for C.C. as if she were his own; C.C. called him “Daddy” and he held himself out “to other family members” as C.C.’s father; he and Brenda lived with C.C. and he provided financial and emotional support for C.C.; he took C.C. to church, told her bedtime stories, engaged in other family activities and spent holidays together as a family; C.C. spent weekends with Kenneth’s biological children, who treated C.C. as a sister; and Kenneth was the only one C.C. knew as a father.
To the extent Kenneth now relies on information contained in his JV-505 form, the JV-505 is not a declaration under penalty of perjury, was not admitted into evidence, and is therefore insufficient to demonstrate any inadequacy of the evidence supporting the court’s ruling.
Furthermore, the information in the JV-505 form and the evidence at the hearing is not as compelling as Kenneth suggests. The fact that Kenneth has lived with C.C. and Brenda is not sufficient in itself to establish presumed father status. (See Miller, supra, 64 Cal.App.4th at p. 118.) While his claimed ignorance of his rights might be seen as an excuse for not attempting to participate in the first dependency action, it could just as reasonably be viewed as confirmation that he did little to pursue the matter, notwithstanding the potential consequences for C.C. The fact that Kenneth’s biological children call C.C. “Sissy,” C.C. calls Kenneth “Daddy,” and other family members may refer to Kenneth as C.C.’s father does not mean Kenneth openly held out C.C. to be his own natural child in the community. In fact, Kenneth did not testify that he held C.C. out as his natural child in the community. Nor is there any indication that the Department’s view of Kenneth as C.C.’s “father” was based on his holding her out to be his natural child, let alone on any personal knowledge concerning C.C.’s upbringing or her relationship to and with Kenneth. Indeed, social worker Owen testified she had never even seen Kenneth interact with C.C.
In any event, while there may be evidence from which one could infer that Kenneth has taken laudable steps, at least recently, to develop a relationship with C.C., there was also evidence, discussed ante, from which the court could reasonably infer that Kenneth failed to meet the criteria for presumed father status. It is not within our purview to reweigh the evidence; we only “determine whether a reasonable trier of fact could have found for the respondent.” (In re Spencer W., supra, 48 Cal.App.4th at p. 1650; Miller, supra, 64 Cal.App.4th at p. 118, italics added.) For the reasons stated, there was substantial evidence supporting the juvenile court’s conclusion.
The cases on which Kenneth relies are distinguishable from the matter at hand. In In re Kiana A. (2001) 93 Cal.App.4th 1109, 1116, one man had qualified as a presumptive father because his name appeared on the child’s birth certificate and he married her mother (Fam. Code, § 7611, subd. (c)(1)). Another man qualified as a presumptive father under subdivision (d) of Family Code section 7611, because he took the child into his home, “held her out as his natural child, provided necessities of life and acted toward her as a parent, enrolling her in school, meeting with her teachers and transporting her to and from school on a daily basis,” even though he might have more actively protected her from neglect. (Kiana A., supra, at pp. 1116-1117, italics added.) The appellate court held that the trial court did not err in concluding the latter presumption was entitled to greater weight than the former. (Id. at p. 1118.) While there was enough evidence in Kiana A. to support the court’s conclusion that the man who “held [Kiana] out as his natural child” was a presumptive father, there was enough evidence in this case to support the court’s conclusion that Kenneth did not hold C.C. out as his natural child.
In re Nicholas H. (2002) 28 Cal.4th 56, on which Kenneth also relies, did not address whether the appellant had met the requirements of Family Code section 7611, subdivision (d). Instead, the court determined that the presumption arising under that statute was not necessarily rebutted under Family Code section 7612 by the presumed father’s admission that he was not the child’s biological father. (Nicholas H., supra, 28 Cal.4th at pp. 58, 63.) The operation of Family Code section 7612 is not at issue here. Moreover, Kenneth’s admission that he was not C.C.’s biological father was not really the focus of the juvenile court’s ruling in this case, and evidence other than Kenneth’s admission, as discussed ante, was sufficient to support the court’s decision.
In re Salvador M. (2003) 111 Cal.App.4th 1353 is also distinguishable. There, a woman raised her younger brother as her own child after their mother died. Because she told certain school officials, police officers, and social workers that he was her brother, the juvenile court decided she had not held herself out as his natural mother. The appellate court reversed, holding she was nonetheless a presumptive parent under Family Code section 7611, subdivision (d) because “the most compelling evidence that appellant held [him] out as her own son” was that “eight-year-old Salvador believed appellant was his mother.” (Id. at p. 1358, italics in original.) In the matter before us, however, the evidence is that two-year-old C.C. called Kenneth “Daddy,” which is far less compelling than an eight-year-old expressly believing the appellant to be his actual mother. Moreover, as the court in Salvador M. noted, the appellant in that case had submitted a declaration stating: “to the rest of the world, Salvador is my son.” (Id. at pp. 1356, 1358, italics added.) Kenneth has made no such declaration here; nor is there evidence in the record to support it.
Kenneth argues that the juvenile court erred because it thought presumed father status required a biological relationship between Kenneth and C.C., or Kenneth’s holding himself out as C.C.’s biological father. Kenneth premises this argument on a single statement by the court: “the catch of presumed father status is that – is that even if you know it’s not true, you tell the rest of the world: ‘This is my natural child.’” We find no reversible error in the court’s comment. The court plainly recognized that there need not be a biological connection between the child and the person who seeks recognition as a presumed father. Moreover, viewing the juvenile court’s explanation for its ruling in its entirety, Kenneth’s admission that he was not C.C.’s biological parent was not the essence of the court’s ruling. The upshot of the court’s concern was Kenneth’s failure to act as a parent and represent himself as such in the community, in sufficient duration and extent to establish himself as a presumed father.
Kenneth is also incorrect in his assertion that the juvenile court required him to apply for guardianship of C.C. as a precondition to presumed father status. The court stated: “. . . when a child is being put at risk of the other parent, [that] person has to act as a parent. That means if they don’t have legal status that they make every effort to get legal status to protect the child. [T]hat would be to apply for guardianship.” We do not read the court’s statement as an attempt to make a formal guardianship application necessary in all cases; indeed, if the court had actually held such a view, it would have explained its ruling by that statement alone without going into its further extended discussion. Instead, the court’s point was apparently that Kenneth’s evidence was insufficient to show he had done enough in response to the circumstances arising from Brenda’s substance abuse to warrant presumptive father status.
We commend Kenneth in his recent efforts to be actively involved in C.C.’s life, supportive of C.C.’s mother, and part of a loving family home. Given our standard of review, however, we must conclude that he has not affirmatively demonstrated error, because he has not shown an insufficiency in the evidence supporting the juvenile court’s conclusion. We also note that the juvenile court has ordered services, and the Department has agreed to provide them, to assist Kenneth in his continued role.
III. DISPOSITION
The order is affirmed.
We concur. JONES, P. J., SIMONS, J.