Opinion
B193093
4-19-2007
In re JONATHAN G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NERY D., Defendant and Appellant.
John L. Dodd & Associates and Lisa A. DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Liana Serobian, Associate County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Nery D. appeals an order denying his request for presumptive parent status as to Jonathan G. and purports to appeal an order denying his request for presumptive parent status as to Carolina M. We affirm the juvenile courts orders.
BACKGROUND
Carolina and Jonathan belong to a sibling group consisting of six children who initially came to the attention of the Department of Children and Family Services (DCFS) in May of 2005 based on substantiated allegations of sexual abuse by an uncle of eight-year-old Erika, seven-year-old Abigail and two-year-old Carolina. That same month, allegations of general neglect were substantiated and mother agreed to participate in a plan of voluntary family reunification. Pursuant to that plan, in August of 2005, mother completed an affidavit for temporary care of Carolina by Nery D.s brother and sister-in-law. It appears this arrangement continued until March 31, 2006, when DCFS detained all six children following its determination there were too many concerns with mothers parenting to leave the children in her care or to return Carolina to her. Erika, Abigail and Martin were placed in one foster home; Carolina, Moises and Jonathan were placed in another foster home.
All six children were declared dependents based on a petition filed April 5, 2006. As sustained, the petition alleged that Erika, Abigail and Carolina were sexually abused by an uncle in May of 2005 and mother failed to obtain timely counseling for the children, thereby placing those children and their siblings at risk of harm. The petition also alleged mother failed to follow through with medical and Regional Center appointments for Jonathan who suffers from insufficient weight gain and has a hearing loss. The petition also alleged Abigail, Martin and Moises were found in an unhygienic condition.
Mother told social workers assigned to the case that Nery D. was the father of Carolina and Jonathan. However, Nery D. questioned his paternity of Carolina and Jonathan and refused to sign birth certificates for either child. Nery D. stated he has become attached to the children and is ready to continue to provide for them in all ways possible. Nery D. claimed he was unaware of the medical neglect of Jonathan.
On April 5, 2006, Nery D. appeared at a detention hearing and the juvenile court named Nery D. the presumed father of Carolina and Jonathan. Mother asked that all six children be placed with Nery D. However, Nery D. indicated, through counsel, that he did not have sufficient space or the capacity to care for all the children. Also, Nery D. wished to speak with his brother before volunteering his brother to be Carolinas caretaker.
On April 20, 2006, Nery D. told a social worker he would like to visit Carolina and Jonathan. Nery D. also stated he loved Carolina and Jonathan and wanted to accept responsibility for the children even though he was not certain he was their biological father. Nery D. stated that, now that he was aware of mothers neglect, he wanted to care for them. However, he resides in an apartment and does not have room for Carolina or Jonathan. The CSW also questioned Nery D.s ability to care for a medically fragile child.
On May 24, 2006, the juvenile court ordered DCFS to investigate the possibility of placing Carolina and Jonathan with Nery D. When mothers counsel requested further investigation of the paternity issue, Nery D.s counsel objected and noted mother already had completed a paternity questionnaire with respect to the children and Nery D. had been found to be the presumed father of Carolina and Jonathan.
A social report prepared for June 8, 2006, indicated Erika and Abigail stated they were afraid of Nery D. because he got upset easily and used to hit them, particularly Martin. Nery D. pulled Martins ears and yelled at Carolina, who reportedly did not like Nery D. at all. Erika and Abigail stated Nery D. is nice during visits because he knows people are watching.
A report prepared for May 30, 2006, indicated Nery D. wanted paternity tests before he took custody of Carolina and Jonathan. If testing revealed Nery D. is not the biological father of the children, he wanted to adopt only Carolina because he has four sons in his native country and would like a daughter. Nery D. indicated he currently is unable to care for the children in his home because he shares a small apartment with several males.
On June 12, 2006, the juvenile court sustained the dependency petition as agreed upon by the parties in mediation and granted Nery D.s request for paternity testing.
A social report prepared for the disposition hearing on August 2, 2006, indicated testing had revealed Nery D. to be the biological father of Jonathan but not the biological father of Carolina. Nery D. told the social worker he was surprised by the results because he felt strongly Jonathan was not his biological child. Nery D. indicated he wished to adopt Carolina because everyone in his family thinks she is his child.
Mother reportedly was happy to learn Nery D. was not Carolinas father. Mother stated Nery D. rarely helped her provide for the children financially and, when he did, he expected sex in exchange. Mother stated Nery D. is a very aggressive person who becomes angry easily and her children do not like him. Mother indicated Nery D. sexually abused her during her last pregnancy, requiring her to go to the hospital at least four times and resulting in Jonathans premature birth.
With respect to Nery D.s weekly monitored visits of the children, the CSW reported that on several occasions Nery D. was accompanied by male friends and/or roommates who interacted inappropriately with Carolina, pulling the childs shirt up and kissing her stomach. Nery D.s companions also spoke inappropriately to the child. When the CSW confronted Nery D., he responded Carolina was accustomed to such treatment and his friends were only playing. Nery D. thought the child sounded funny repeating phrases his friends would say in Spanish such as, "I am a little bitch," and "my mother is a bitch." During the visits, Nery D. did not pay attention to Jonathan, did not assist with Jonathans needs and focused on Carolina. The CSW constantly had to remind Nery D. that Jonathan also was there.
The report indicated that, although Nery D. is the biological father of Jonathan, he does not want parental responsibility for the child.
2. The first disposition hearing.
On August 2, 2006, as relevant here, the juvenile court found Nery D. was not the biological father of Carolina but was Jonathans biological father. Nery D.s counsel asked for visitation with Jonathan and monitored telephone calls with Carolina, indicating Nery D. believed Carolina had a bond with him. When the trial court clarified that Nery D. did not want to reunify with Jonathan, Nery D.s counsel indicated that, nonetheless, Nery D. would like visits.
The juvenile court responded, "Well I dont think its fair to Jonathan to have a man visit him who doesnt want to be his father. I think that raises Jonathans expectations. And Jonathan is only five months old. So I dont see that it would benefit at all." The juvenile court found Nery D. did not qualify as a presumed father of either Jonathan or Carolina and denied visitation of the children.
Nery D.s counsel revisited the issue later in the hearing, asserting Nery D. was entitled to visitation with his biological son, Jonathan. The juvenile court disagreed and found Nery D. was not entitled to reunification services, which included visitation. The trial court indicated, "[H]es not asking for reunification. . . . All he wants to do is visit. And I dont believe thats best for Jonathan because I think it will lead to a great deal of disappointment for the child."
Nery D.s counsel insisted Nery D. wanted to be "part of Jonathans life." The juvenile court suggested the matter be continued to August 10, 2006, for a contested disposition hearing at which Nery D. could testify. The juvenile court ordered no reunification services for Nery D. with respect to Carolina and set the matter for a further hearing as to Jonathan.
3. The contested disposition hearing.
On August 10, 2006, the juvenile court resumed the disposition hearing. Nery D. testified he lived with mother before she gave birth to Jonathan. Although Nery D.s name is not on Jonathans birth certificate, Nery D. visited Jonathan at the hospital once and visited "[a]ll the time" after the child was released from the hospital. While Jonathan was in foster care, Nery D. missed only one weekly visit because the caretaker failed to appear. Nery D. testified he visited "like a father," he has provided financial support as well as clothes and pampers and he wished to continue to visit. Nery D. conceded he currently is unable to take Jonathan into his home because he lives with four males and, even if he had his own apartment, he would need help caring for Jonathan.
The juvenile court found Nery D. did not qualify as Jonathans presumed father. The juvenile court noted Nery D. requested paternity testing and he was surprised to learn Jonathan was his child. "So I dont believe that [Nery D. has] held [Jonathan] out as his child and that hes received the child into his home." The juvenile court further concluded family reunification services would not be beneficial to Jonathan. The juvenile court noted the reports clearly indicate that "when [Nery D.] visited, he primarily paid attention to Carolina, not to Jonathan. [¶] The statements from the other children indicate . . . they were afraid of him because he got upset easily and that he used to hit them, particularly the child Martin . . . . So I cant find its in the best interests." The juvenile court indicated it disbelieved Nery D.s testimony that he helped mother financially and found Nery D.s "overall behavior" demonstrated he did not quickly "step up to the plate and be an appropriate father for Jonathan." The juvenile court suggested the only reason Nery D. "[is] suddenly interested in Jonathan now is because Carolina turned out not to be his child." The juvenile court concluded Nery D. was not Jonathans presumed father and denied Nery D.s request for family reunification services.
Nery D. appealed the juvenile courts order of August 10, 2006, specifically noting his disagreement with the juvenile courts "denial of presumed father status" and the "denial of reunification services."
CONTENTIONS
Nery D. contends he is entitled to presumed father status and family reunification services with respect to both Jonathan and Carolina.
DISCUSSION
1. Jonathan.
Nery D. asserts he came forward promptly and demonstrated full commitment to Jonathan who was only two months old and medically fragile when he was detained. Nery D. contends the statutory distinction between presumed fathers, biological fathers and alleged fathers is unconstitutional in cases, such as this, where a biological father is prevented from becoming a presumed father and participating in family reunification services based on circumstances beyond the control of the biological father. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849; In re Julia U. (1998) 64 Cal.App.4th 532, 540-542.) Nery D. notes he is a non-offending parent with no criminal record who visited Jonathan daily at mothers home and provided financial support for Jonathan by purchasing clothes and diapers for the child. After Carolina and Jonathan were detained, Nery D. immediately told the social worker he wanted to care for the children even if he was not their biological father and that he had family support to help him. Nery D. visited consistently and only questioned Jonathans paternity because mother teased Nery D. about the childs paternity and mother had six children by four men. Nery D. asserts the act of taking Jonathan into his home would have been a mere formality in that he embraced the responsibilities of fatherhood. (In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117; In re A.A. (2003) 114 Cal.App.4th 771, 783-784; In re Jerry P. (2002) 95 Cal.App.4th 793.) Nery D. requests remand with directions to grant him presumed father status with respect to Jonathan and six months of family reunification services.
A rebuttable presumption of paternity arises when a man receives a child into his home and acknowledges the child as his natural child. (Fam. Code, § 7611, subd. (d)). However, Nery D. never received Jonathan into his home and refused to take custody of the child when DCFS detained the child. Nery D. was not present at Jonathans birth, refused to sign Jonathans birth certificate, visited the child at the hospital only once, requested genetic testing before he took the child into his home and was surprised to learn he was Jonathans biological father. Nery D. treated Jonathans siblings poorly and he told the CSW that if he was shown not to be the biological father of the children, he wanted to adopt Carolina, but not Jonathan. Although Nery D. visited Jonathan while the child was in mothers care, the juvenile court properly could conclude Nery D.s intent was to spend time with mother, not to visit Jonathan. The juvenile court also could conclude Nery D. assisted mother financially with Jonathans support only when her other resources were exhausted and even then only provided necessities and requested sex in exchange for his assistance. After detention of the children, Nery D. did not pay attention to Jonathan during visits, did not assist with his needs during visits and the CSW had to remind Nery D. that Jonathan was present.
Based on this evidence, the juvenile court properly could conclude Nery D. did not qualify as Jonathans presumed father. None of the cases cited by Nery D. assists his argument. In In re Baby Boy V., the mother did not notify the father of the birth of the child, did not notify the social agency of the fathers identity and the father "came forward at the earliest possible moment" to accept his parental responsibilities. (In re Baby Boy V., supra, 140 Cal.App.4th at p. 1117.) Similarly, In re A.A., supra, 114 Cal.App.4th 771, found one of two males competing for presumed father status had accepted the child into his home and the other had not. Finally, in In re Jerry P., supra, 95 Cal.App.4th 793, the father did all that was possible but was prevented, through no fault of his own, from physically bringing the child into his home.
In the case at bench, Nery D. took no steps to hold Jonathan out as his own child, he was surprised to learn Jonathan was his child and he did not request reunification with Jonathan. Presented with these circumstances, the juvenile court properly could deny Nery D. family reunification services. "[O]nly a presumed, not a mere biological, father is a `parent entitled to receive reunification services . . . ." (In re Zacharia D. (1993) 6 Cal.4th 435, 451; In re Kiana A. (2001) 93 Cal.App.4th 1109, 1116; In re Sarah C. (1992) 8 Cal.App.4th 964, 974-975.)
2. Carolina.
a. Nery D. did not seek a contested disposition hearing with respect to Carolina and did not appeal the order denying his request for presumed father status as to Carolina.
The juvenile court denied Nery D.s request for presumed father status as to Carolina on August 2, 2006, and continued the hearing for a contest with respect to Jonathan only. After the contested hearing of August 10, 2006, Nery D. filed a notice of appeal from the order of the juvenile court dated August 10, 2006, noting the "denial of presumed father status" and the "denial of reunification services."
Because Nery D. did request a contested hearing with respect to the juvenile courts finding he was not Carolinas presumed father and did not appeal the juvenile courts order of August 2, 2006, he cannot now raise the issue on appeal.
Nery D. nonetheless asserts his notice of appeal filed August 10, 2006, must be construed liberally to include the orders made with respect to Carolina on August 2, 2006. Nery D. notes his notice of appeal is not limited to Jonathan and the notice of appeal is handwritten suggesting it was prepared by Nery D. and thus should be construed in favor of its sufficiency. (In re Baby Boy V., supra, 140 Cal.App.4th at p. 1115.)
Nery D.s arguments are not persuasive. Nery D. cannot ask this court to address an issue he failed to litigate in the juvenile court. Additionally, Nery D. did not appeal the juvenile courts orders respecting Carolina made on August 2, 2006. On the record presented, it is clear that Nery D. sought a contested hearing only as to Jonathan and that he appealed only the ruling made after the contested hearing on August 10, 2006 with respect to Jonathan. Thus, Nery D. cannot seek appellate review of the juvenile courts rulings made with respect to Carolina on August 2, 2006.
b. Nery D.s claim is meritless in any event.
Even if the notice of appeal is construed to include the orders made with respect to Carolina on August 2, 2006, Nery D.s claim fails on the merits.
Nery D. contends he qualified as Carolinas presumed father because he took Carolina into his home and held her out as his own child within the meaning of Family Code section 7611, subdivision (d). Nery D. notes that, prior to paternity testing, Nery D. believed he was Carolinas father, he developed a positive relationship with her, members of Nery D.s family thought Carolina was Nery D.s daughter and Nery D. received Carolina into his home when she was placed with him in August of 2005. Nery D. claims he lived with Carolina while mother was pregnant with Jonathan and, after Jonathans birth, Nery D. visited mother and the children every day. Nery D. stated he loved Carolina and wanted to adopt her even though she was not his biological child. Additionally, Nery D. was the only man who came forward seeking presumed father status of Carolina. Nery D. argues the absence of a biological connection to a child does not defeat a presumption of paternity if rebutting paternity on that basis would render the child fatherless. (In re Nicholas H. (2002) 28 Cal.4th 56, 59, 70; In re Raphael P. (2002) 97 Cal.App.4th 716, 732-733.) Nery D. asserts the inappropriate behavior exhibited by his male companions at the visits was not a sufficient basis upon which to deny presumed father status. Nery D. argues his desire for a daughter is not an inappropriate reason to adopt and his inability to articulate his feelings for the child should not determine his parental status.
Nery D. concludes the matter must be remanded with directions to grant him presumed father status and six months family beautification services with Carolina.
Contrary to Nery D.s assertion, the juvenile court properly could find he did not receive Carolina into his home. Rather, Nery D. visited Carolinas mother, with whom he had an intimate relationship. Further, although mother voluntarily placed Carolina with Nery D.s brother in August of 2005, this did not amount to placing Carolina in the home of Nery D. in that Nery D. lived with mother while mother was pregnant with Jonathan. Because Carolina had been placed with Nery D.s brother, Carolina was not present in the home while Nery D. lived with mother. After Carolina was detained, Nery D. refused to accept Carolina into his home until his paternity had been proved. Based on this evidence, the juvenile court properly could conclude Nery D. did not take Carolina into his home and hold her out his natural child.
Nery D.s reliance on In re Nicholas H., supra, 28 Cal.4th 56, and In re Raphael P., supra, 97 Cal.App.4th 716, is misplaced. Those cases held that evidence an individual is not the biological father of a child is insufficient to overcome the status of presumed father. However, in this case the presumption never arose because Nery D. failed to receive Carolina into his home and hold her out as his child. Thus, he was not entitled to presumed father status under Family Code section 7611, subdivision (d).
Accordingly, even if Nery D. is found to have preserved this issue for review on appeal, it fails on the merits.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur:
CROSKEY, J.
KITCHING, J. --------------- Notes: Jonathan was born at seven months gestation and weighed four pounds. At the age of two months weighed "about 7 pounds and appear[ed] very fragile."