Opinion
F043198.
11-4-2003
In re DUSTIN B., A Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. JAMES B., Defendant and Appellant.
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant. B.C. Barmann, Sr., County Counsel, and Tom Clow, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
James B. is the biological father of Dustin B. who was detained at birth based on the mothers and appellants substance abuse and failure to complete reunification services for two other children. Appellant challenges a dispositional order denying him reunification services in the newborns case under Welfare and Institutions Code section 361.5, subdivision (a).[] He contends section 361.5, subdivision (a) violates his equal protection and due process rights because it requires him to establish that he is Dustin B.s presumed father in order to receive reunification services while the infants mother does not have to overcome such a procedural hurdle.
All statutory references hereinafter are to the Welfare and Institutions Code unless otherwise indicated.
On review, we will affirm.
PROCEDURAL AND FACTUAL HISTORY
At the time of Dustins birth in March 2003, his siblings had been in foster care for approximately one year due to his parents history of substance abuse. Despite lengthy reunification services, neither parent had made substantive progress. Appellant in particular did not complete a court-ordered treatment program. He also used methamphetamine in December 2002 and failed to drug test in the following three months. Consequently, respondent Kern County Department of Human Services (the department) detained Dustin at the hospital where he was born and initiated these dependency proceedings.
Because appellant and Dustins mother were not married, the department listed appellant in its dependency petition as "alleged" and "bio" father. At the initial detention hearing, appellant executed and filed a Judicial Council form entitled "STATEMENT REGARDING PATERNITY." In his statement, appellant checked a box indicating his belief that he was Dustins father and requesting a judgment of paternity. The form also contained an advisement of rights stating that as an alleged father, appellant was not automatically entitled to reunification services. Under oath, the mother testified that appellant was the father of Dustin. The court, in addition to detaining the infant and setting the matter for a jurisdictional hearing, granted the request of appellants trial counsel for visitation.
At the jurisdictional hearing, the parents waived their due process rights and submitted the matter. Consequently, the court exercised its dependency jurisdiction under section 300, subdivisions (b) and (j) and set a dispositional hearing.
The department in turn prepared a social study recommending, in relevant part to this appeal, that the court not order reunification services for appellant because he was only an alleged father and such services would not benefit the child. Notably, appellant did not respond to this recommendation by petitioning the court for presumed father status. In fact, appellant did not attend the dispositional hearing. According to his trial counsel, appellant and the mother had "split up and apparently his whereabouts — we dont know where he is exactly."
The court proceeded to hear from counsel on the issue of disposition. Appellants attorney presented the following legal argument.
"[M]y client essentially is being denied the equal protection of the laws under the United States Constitution. . . .
"Factually, first of all, we have a baby that was detained at the hospital, if my recollection is correct, so the child has never been in either parents custody. And because of that situation, we have a father who could only be elevated to biological status. [¶] . . . [¶]
"[T]he only basis for the Department to request a denial on the father is to allege, as they have, that hes merely a biological father and that services would not benefit the child.
"Again, you have two parents who essentially have no legal distinction except one is a mother and one is a father. And it just appears that the laws of the State of California are treating parents in this situation differently when there is no legal basis to do so. So with that comment on the record, Ill submit the matter and indicate that the father does request services on Dustin [B.]."
After further argument, the court made its dispositional orders, including its decision to deny appellant services because he was a biological father and extending services would not benefit the child.
DISCUSSION
As previously noted, appellant contends the courts decision to deny him reunification services violates his equal protection and due process rights because despite his status as Dustins biological father, California law requires him to establish he is the minors presumed father in order to receive reunification services (§ 361.5, subd. (a)) while the law imposes no such requirement on the biological mother to receive services. For an unwed father, such as appellant, to achieve presumed father status and in turn receive reunification services under Californias juvenile dependency law, he must receive the child into his home and hold it out as his natural child. (§ 361.5, subd. (a); Fam. Code, § 7611, subd. (d).) Because the department detained Dustin at the hospital when he was born, appellant additionally complains the department prevented him from taking Dustin into his home so as to establish presumed father status. Appellant further argues he did all that he could do to warrant such status. As discussed below, we disagree with each of appellants claims.
As appellant is quick to point out, gender-based distinctions in the law must serve important governmental objectives and must be substantially related to achievement of those objectives to withstand judicial scrutiny under the equal protection clause of the Fourteenth Amendment. (Caban v. Mohammed (1978) 441 U.S. 380, 388.) Nevertheless and contrary to appellants initial argument, the equal protection clause does not prevent a state from affording a childs biological father fewer rights than the mother if he has never established a relationship with the child. (Lehr v. Robertson (1983) 463 U.S. 248, 267-268; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 836 (Kelsey S.).) Instead, the biological connection between father and child is unique and worthy of constitutional protection if the father grasps the opportunity to develop that biological connection into a full and enduring relationship. (Kelsey S., supra, 1 Cal.4th at p. 838.)
Admittedly, an unwed fathers ability to achieve presumed father status, especially the element that he receive the child into his home, is, for the most part, within the mothers control and can even be thwarted by a third party. (Kelsey S., supra, 1 Cal.4th at p. 847.) Consequently, as the state Supreme Court observed in the context of private adoptions, Californias presumed father statute 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 allows a mother unilaterally to preclude her childs biological father from becoming a presumed father." (Id. at p. 849, original emphasis.)
The threshold question, however, is whether the unwed father did all he could reasonably do to act like a father, i.e. assume his parental responsibilities. (Kelsey S., supra, 1 Cal.4th at pp. 850-851.) The unwed father must promptly come forward and demonstrate a full commitment to his parental responsibilities — emotional, financial, and otherwise. (Id. at p. 849.) To determine whether a father demonstrated a sufficient commitment to his parental responsibilities, a court should consider all relevant factors. (Ibid.)
"Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate `a willingness himself to assume full custody of the child—not merely to block adoption by others. [Citation.] A court should also consider the fathers public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Kelsey S., supra, 1 Cal.4th at p. 849.)
The Kelsey S. analysis has been extended to juvenile dependency proceedings. (In re Jerry P. (2002) 95 Cal.App.4th 793, 810-812; In re Julia U. (1998) 64 Cal.App.4th 532, 540-541.) As the court in Jerry P., supra, 95 Cal.App.4th at page 811 ruled,
"with respect to biological fathers section 7611 and the related dependency scheme violate the federal constitutional guarantees of equal protection and due process to the extent they allow a mother or third person unilaterally to preclude the father from becoming a `presumed father where he promptly comes forward and demonstrates as well as he can under the circumstances a full commitment to his parental responsibilities—emotional, financial and otherwise."
Applying the foregoing to the facts of this case, we conclude appellants claim of constitutional error fails. We seriously question appellants assertion that the department precluded him from becoming a presumed father. While he emphasizes the departments hospital detention of Dustin, it was his own failure to comply with the reunification plan for his other children, in addition to the mothers positive drug test, that led to Dustins detention. Additionally, his argument is speculative. There was no evidence that appellant would have taken Dustin into his home but for the detention. In fact, appellant never moved for presumed father status in these proceedings.
In any event, appellant did not satisfy the Kelsey S. threshold requirement of promptly coming forward and demonstrating a full commitment to his parental responsibilities — emotional, financial, and otherwise. While he contends he did all he could reasonably do under the circumstances, he points only to the fact that he filed a declaration of paternity and secured visitation rights pending the courts dispositional hearing.[] In so arguing, he essentially ignores the Kelsey S. test and his failure to offer any evidence whatsoever of what he did before Dustin was born to demonstrate a full commitment to his parental responsibilities. Along these lines, appellants effort to compare himself favorably to the man who prevailed on his claim of presumed father status in In re Jerry P., supra, falls far short.
He also claims he visited Dustin at the hospital at his birth but there is no evidence in the record to that effect.
The man in In re Jerry P., supra, had a relationship for approximately a year with the childs mother during which time the baby Jerry was conceived. When the man learned she was pregnant, he assumed the baby was his and told others the mother was pregnant with his child. The man eventually broke off his relationship with the mother due to her drug abuse despite his warnings she was harming the baby. Notwithstanding their breakup, the man continued to provide support to the mother, by supplying her with vitamin supplements and bus fare for doctor visits, helping with prenatal care and paying for her medications. (In re Jerry P., supra, 95 Cal.App.4th at p. 797.)
Then, after Jerry was born, the man visited him frequently in the hospital until one day the baby was gone. Unaware Jerry had been placed in foster care and dependency proceedings were initiated after the baby and the mother tested positive for cocaine, the man tried unsuccessfully for four months to find Jerry. When the man eventually learned of Jerrys whereabouts, the man requested visits without success. He then went to court petitioned for presumed father status and secured visitation rights, which he vigorously exercised. (In re Jerry P., supra, 95 Cal.App.4th at pp. 798-799.)
What little evidence we have about appellant bears no compelling comparison to the man in Jerry P., supra.
In the final analysis, appellants claim for reunification services is based on little more than his trial counsels legal argument that biological fathers are treated unfairly in comparison to biological mothers. Given that appellant did not see fit to even attend the hearing let alone actually seek presumed father status, it comes as no surprise that counsel had little else to argue. Nevertheless, we find the courts application of section 361.5, subdivision (a) and decision to deny appellant reunification services did not violate any equal protection or due process right of appellants.
DISPOSITION
The dispositional order is affirmed.