Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. J218012. James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minor.
OPINION
McKINSTER, Acting P. J.
J.L. (father) appeals from the juvenile court’s order finding him to be an alleged father of E.M. and denying him reunification services. Father makes three contentions: (1) that the court erred by denying father’s request for a paternity test; (2) that the court erred by finding that father did not meet the requirements for presumed father status; and (3) that the court failed to make the required finding of whether it would be in E.M.’s best interests to grant father reunification services. The San Bernardino County Department of Children’s Services (the department) and counsel for E.M. oppose father’s arguments. We affirm the order.
FACTS
A. Detention
On November 2, 2007, a passerby saw two-year-old E.M. and three-year-old I.M. in the front yard of their house in Victorville. The children were unsupervised and “covered from head to toe with oil based paint, even in their eyes, ears, nose, and mouth.” The front yard of the house did not have a gate and the children could have easily entered a busy intersection.
I.M. is not a party in this appeal.
Deputy Fowler responded to a call from the passerby. Deputy Fowler entered the house, yelled for a parent or adult, but received no response. Deputy Fowler discovered E.M. (mother) sleeping in a bedroom. The house was dirty, there was no food for the children, and dangerous items were within the children’s reach. Mother is a known associate of the Eastside Victoria gang. Mother said that I.M.’s father is J.M. and E.M.’s father is J.L., father. Father was in state prison at the time of this incident. The children were removed from mother’s care.
At a detention hearing on November 7, 2007, the court ordered that the children continue to be removed from mother’s care. The court ordered mother to complete a paternity inquiry. In response to questioning from the court, mother denied that anyone other than father could be E.M.’s father. Mother said that father was not named on E.M.’s birth certificate because he was not present when the birth certificate was completed. Mother said that father has a relationship with E.M. when he is not incarcerated and that father has been in prison for approximately “10 percent” of E.M.’s life.
B. Jurisdiction/Disposition
When the children arrived at their foster home, they were both in diapers. The children’s foster mother potty trained both children within three days, so that they would no longer need to use diapers. E.M. came to the foster home with a bottle that had mildew inside it. E.M. was diagnosed with anemia. On November 30, 2007, mother was sentenced to state prison for a term of one year four months due to a conviction for vehicle theft.
On November 28, 2007, the court continued the jurisdiction/disposition hearing, so that father and J.M. could be notified of the hearing. On December 14, 2007, the juvenile court received a letter from father. In the letter, father wrote that he would not be “[g]iving [u]p” his parental rights to E.M. and that he was scheduled to be paroled on February 5, 2008.
On February 19, 2008, the juvenile court held a contested jurisdiction/disposition hearing in the matter. Father testified that he was not present at the hospital when E.M. was born and that he never signed a voluntary declaration of paternity for E.M. Father did not attend any prenatal care appointments with mother. Father did not live with mother while she was pregnant with E.M. or after E.M. was born. On direct examination, father was asked if he was aware that he was E.M.’s father at the time of E.M.’s birth. Father responded, “They said it was my child, but I wasn’t aware of it.” Father testified that mother told him he was E.M.’s father, but he did not believe mother. Father stated that he now believes E.M. is his child because she resembles him.
When E.M. was six months old, mother began bringing E.M. to father’s friend’s house. Mother would leave E.M. at the friend’s house and “sometimes” father would visit E.M. there for one or two hours. Father said that mother’s visits to the friend’s house varied and that he “wouldn’t see her for months, a month, a week.”
Father’s mother sometimes picked up E.M. and brought E.M. to her house. Father’s mother would then contact father to tell him E.M. was at her house. Father visited E.M. at his mother’s house approximately once a week because father’s “fiancée would encourage [him] to go to [his mother’s] house.” The visits with E.M. lasted “all day.” Father estimated that he visited with E.M. 35 to 40 times. Father testified that during the visits he bought E.M. clothes, fed her, played with her, and gave her baths. Father stated that he does not pay child support for E.M. because he receives social security payments. Father admitted that he was incarcerated for seven months after E.M. was born and that he had recently been incarcerated for another five-month period.
Father has told his mother, fiancée, and friends that he is E.M.’s father. Father testified that he wanted a paternity test. Father said he was willing to be financially responsible for E.M. whether or not he is her biological father, but father admitted that he had never sought custody of E.M.
When making its ruling, the juvenile court made the following comments: “Well, on the issue of whether or not [father] should be elevated to the status of presumed father, we all know the standards that are required, and I’m not sure that any of the standards are met here. Certainly, there’s some evidence he has held the child out to be his own fairly recently. I don’t think that is sufficient to come under the category of taking the child into his home and holding it out as his own. I don’t believe there’s any other factor from which I can presume that he would be the child’s father to reach the level of presumed status.
“So I would find that the evidence is not sufficient in this case for me to find that finding. As to the issue of visitation, the contact has been somewhat sporadic, even after the six months when he first learned of the existence of [E.M.]. The contact has been whenever the child was brought around to a friend or his mother’s. According to his testimony, a number of contacts, 35 to 40, over her young life, but these, again, have not been regular contacts. And I don’t think based on his status as an alleged father that it would be in the minor’s best interest to allow visitation or contact at this point in her life. I will deny that request.”
The court found father to be an “alleged father entitled to no services.” The court found by clear and convincing evidence that it would be contrary to the child’s welfare to place her in her parents’ care. The court ordered the department to provide reunification services for mother and E.M.
DISCUSSION
A. Paternity Test
Father contends the court erred by denying his request for a paternity test. We disagree.
When paternity is a relevant fact in a proceeding, a “court may upon its own initiative or upon suggestion made by or on behalf of any person who is involved, and shall upon motion of any party to the action or proceeding . . . order the mother, child, and alleged father to submit to genetic tests.” (Fam. Code, § 7551.)
In the instant case, on direct examination, father was asked if he “want[ed] to be paternity tested.” Father responded, “Yes.” A suggestion was never made that the court order genetic testing. A motion was never filed requesting that the court order genetic testing. Accordingly, the court could not have erred in denying father’s request for a paternity test because no such request was ever made.
Father cites In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1118 (Baby Boy V.), to support his argument that the court was required to grant him a paternity test. Baby Boy V. is distinguishable from the instant case because the father in Baby Boy V. requested a paternity test. (Id. at p. 1116.) No such request was made in the instant case.
B. Presumed Father
Father contends the court erred by finding father did not meet the requirements for presumed father status. We disagree.
“‘[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.” ([Fam. Code,] § 7611, subd. (d), italics added.) . . . Therefore, to become a presumed father, a man who has neither married nor attempted to marry his child’s biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home.’ [Citation.]” (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652, last italics added.) “One who claims he is entitled to presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement.” (In re T.R. (2005) 132 Cal.App.4th 1202, 1210.)
We review the record to determine if substantial evidence supports the juvenile court’s judgment. (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717.) In reviewing the record, “we view all factual matters most favorably to the prevailing party and in support of the judgment, indulging all reasonable inferences and resolving all conflicts accordingly.” (Ibid.)
First, we review whether father received E.M. into his home. Father testified that he visited E.M. at a friend’s house, when mother brought E.M. to the friend’s house. Father also stated that he visited E.M. at his mother’s house, when his mother brought E.M. to her house. The evidence does not support a finding that father received E.M. into his home. (See In re Spencer W., supra, 48 Cal.App.4th at p. 1653 [father received child in his mother’s home, which was not sufficient evidence].)
Second, we analyze whether substantial evidence supports a finding that father held E.M. out as his natural child. Father testified that he told his mother, fiancée, and friends that he is E.M.’s father. However, father did not complete a voluntary declaration of parentage and father did not try to have his name placed on E.M.’s birth certificate. Additionally, father took no steps toward seeking custody of E.M. Father only claimed parentage of E.M. to friends and family and, therefore, substantial evidence does not support a finding that father openly and publicly held E.M. out as his natural child. (See In re Spencer W., supra, 48 Cal.App.4th at p. 1654 [father’s claims of parentage to friends and family were not sufficient to satisfy the requirement of holding the child out as his natural child].)
In conclusion, father did not provide substantial evidence that he (1) received E.M. into his home, and (2) held E.M. out as his natural child. Accordingly, the juvenile court did not err in finding that father did not meet the requirements for presumed father status.
C. Reunification Services
Father argues that the court failed to make the required finding of whether it would be in E.M.’s best interests to grant father reunification services.
As an alleged father, father cannot demand reunification services for himself. (Welf. & Inst. Code, § 361.5, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 451.) Rather, in the case of an alleged father, a juvenile court may grant reunification services if it “determines that the services will benefit the child.” (Welf. & Inst. Code, § 361.5, subd. (a).)
In making its ruling, the court said, “And I don’t think based on his status as an alleged father that it would be in the minor’s best interest to allow visitation or contact at this point in her life.” We infer from this finding that the juvenile court determined reunification services for father would not benefit E.M. Accordingly, we find father’s argument unpersuasive because the juvenile court made the required finding.
DISPOSITION
The order is affirmed.
We concur: KING, J., MILLER, J.