Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County.Ct. No. SWJ001887 William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Appellant.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Respondent T.W.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Respondent C.G.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
OPINION
McKinster, Acting P.J.
This is an appeal by Riverside County Department of Public Social Services (DPSS) from the trial court’s order at a selection and implementation hearing under Welfare and Institutions Code section 366.26 selecting guardianship as the permanent plan for then six-year-old S. and 17-month-old C., the daughters of T.W. (hereafter mother). The trial court selected guardianship as the permanent plan after first finding that the exceptions to termination of parental rights set out in former section 366.26, subdivisions (c)(1)(A) and (c)(1)(D) applied. In particular, the court found that the so-called beneficial parental relationship exception set out in former subdivision (c)(1)(A) of section 366.26 was applicable to C.G., the alleged father of S., and that the former subdivision (c)(1)(D) exception for children living with a relative who is unwilling or unable to adopt was also applicable because S. and C. lived with a cousin of C.G.’s
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
Section 366.26, subdivision (c) was amended, effective January 1, 2008. For purposes of clarity and consistency, we refer to the version in effect at the times relevant herein.
DPSS raises various challenges to the trial court’s order, all of which turn on the absence of evidence to show that C.G. was the parent of either S. or C. According to the only evidence presented on the issue, C.G. was one of two men alleged to be the father of S. and had no legally recognized relationship to C. We agree with DPSS that the evidence was insufficient to support the trial court’s order selecting guardianship as the permanent plan for S. and C. Therefore, we will reverse the judgment and remand the matter to the trial court for a new selection and implementation hearing.
FACTUAL AND PROCEDURAL BACKGROUND
The circumstances giving rise to the dependency proceedings at issue in this appeal are not in dispute, and in any event are not relevant to the issues DPSS raises. We recount only the factual and procedural details that are pertinent to our resolution of those issues, and begin with the fact that DPSS filed a section 300 petition with respect to mother’s older daughter S. on June 4, 2003, in which it alleged, among other things, that both C.G. and R.B. are alleged fathers of S. On February 27, 2006, DPSS filed a section 300 petition with respect to mother’s younger daughter, C. According to the pertinent allegations of that petition, M.H. is the alleged father of C. Although both S. and C. initially remained in mother’s care under a plan of family maintenance, DPSS eventually removed both girls and placed them with Ta.W., initially identified by DPSS as a second cousin to C., and ultimately identified as the “paternal cousin” of both S. and C.
Ta.W. is the cousin of C.G., who is the alleged father only of S. Therefore, Ta. W. is not a cousin, or any other relative, of C.
At the July 2, 2003, combined jurisdiction and disposition hearing on the petition regarding S., mother and C.G. waived their rights to a hearing based on the social worker’s recommendation that, among other things, the disposition would include reunification services for both mother and C.G. Because C.G. was only an alleged father of S., he was not entitled to reunification services, a fact the trial court pointed out to DPSS. Although the court officer (who is not identified by name in the record) expressed the belief that a paternity test was pending at the time of the hearing, C.G. did not pursue paternity testing. Therefore, his status as an alleged father of S. and as a nonrelative to C. did not change during the dependency process.
Because he was not entitled to reunification services, the trial court deleted C.G., whom the trial court referred to as father, from the case plan and then approved the plan as to mother. In a later report, the social worker described the trial court’s action as having “released” father “as to this case.” Although the description is nonsensical, DPSS repeats it in its opening brief. As stated previously, the trial court did not release father from anything. The trial court simply amended the social worker’s proposed case plan by deleting father’s name because as an alleged father, C.G. was not entitled to reunification services.
At the 18-month review hearing in S.’s dependency, the trial court adopted the recommendation of DPSS and terminated mother’s reunification services. The trial court set the section 366.26 selection and implementation hearing for October 10, 2006, after first stating that “the permanent plan of permanent placement with an approved caretaker with a goal of adoption is the appropriate plan.” In the matter involving C., the trial court conducted a combined jurisdiction and disposition hearing on a first amended petition. At the conclusion of that hearing, the trial court denied reunification services to mother, and set the section 366.26 hearing for C. on October 10, 2006, and a “semi[-]annual review” for December 12, 2006.
Mother repeatedly tested positive for drugs.
The clerk’s minutes incorrectly state that the trial court ordered “[t]he permanent plan of Planned Permanent Living Arrangement with PERMANENT PLACEMENT WITH AN APPROVED CARETAKER [name left blank] and a specific permanent planning goal of ADOPTION . . . .” The minute order also incorrectly identifies the October 10, 2006, hearing as a section 366.3 six-month postpermanency review hearing.
On October 10, 2006, DPSS requested a 90-day continuance of the section 366.26 hearing. C.G. appeared in court for that hearing along with counsel who stated he was “available for appointment” on his behalf. The trial court continued the section 366.26 hearing to January 10, 2007, and confirmed December 12, 2006, as the date for the section 366.3 review hearing. C.G. was present at the December 12, 2006, six-month review hearing on the petition involving C. At that hearing, the trial court, among other things, confirmed January 10, 2007, as the date of the selection and implementation hearing with respect to both C. and S.
The pertinent minutes identify the hearing as a section 366.26 hearing with respect to C., but a section 366.3 postpermanency planning hearing as to S.
In the minutes, the court clerk identified the hearing as a section 366.3 postpermanency hearing as to C., and a selection and implementation hearing as to S.
On the date set for the section 366.26 hearing (Jan. 10, 2006) C.G. filed JV-180 forms, also referred to as section 388 motions, in the dependency proceedings of both C. and S. in which he asked the trial court to order reunification services for him and to place both children in his care because he had completed a drug diversion program and a parenting class, and also had “maintained consistent contact” with the children because both girls lived in the home of his cousin. To address those motions, and also because DPSS had requested an additional continuance in order to complete an adoption assessment of “the cousin,” presumably a reference to Ta.W., the trial court again continued the selection and implementation hearings.
Ultimately, the trial court conducted the selection and implementation hearings in both matters on May 17, 2007, after first considering and denying C.G.’s section 388 motions. Ta.W. testified during the selection and implementation hearing and stated, among other things, that although she had initially agreed to adopt S. and C., she only did so because the social worker told her that otherwise the children would be removed from her care. The social worker did not mention the option of legal guardianship. Ta.W. explained that she preferred legal guardianship and confirmed that the reason for that preference was “to maintain [her] family relationship [which she previously had described as close] and work within the family[.]” She also expressed her opinion that “guardianship would be better for the girls because that lets them have more of a relationship with their father and have a chance for him to get his act together” and maybe “he can get his children back in the future . . . .” Ta.W. also stated, “[S.] has told me she loves her dad and wants to be with her dad and loves me; but she loves being with her daddy. It clearly shows. And [C.], she loves her dad.” She confirmed that S. has a positive bond with C.G. and refers to him as “dad or father,” and as apparently displayed by his conduct in the courtroom, he has been very nurturing and caring with the children.
C.G. has not appealed the denial of those motions nor has he filed a respondent’s brief in this appeal by DPSS. Instead, he joins in the brief filed by mother.
At the conclusion of that testimony and after considering the pertinent social worker’s reports, the trial court found that termination of parental rights would be detrimental to the children “in that there are exceptions contained in . . . Section 366.26[, subdivision] (c)(1) A through F that are applicable.” The court expressly found that the former section 366.26, subdivision (c)(1)(A) exception was applicable “to father,” presumably a reference to C.G. The trial court found that legal guardianship “is in the best interests of these minors.” Accordingly, the trial court ordered a permanent plan of guardianship and appointed Ta.W. as the legal guardian of both C. and S.
The clerk’s minutes state that the trial court found termination of parental rights would be detrimental because “[t]he child is living with a relative or foster parent who is unable or unwilling to adopt because of exceptional circumstances, but willing and able to provide the child with a stable/permanent home.”
DISCUSSION
DPSS contends in this appeal that the trial court erred in ordering guardianship as the permanent plan because the evidence does not support the trial court’s finding, quoted above, that there are exceptions in section 366.26, subdivision (c)(1)(A) through (F) that apply. We agree, for reasons we now explain.
As previously noted, the trial court expressly found that the former subdivision (c)(1)(A) exception applied “to father.” Former section 366.26, subdivision (c)(1) specifies that if there is clear and convincing evidence “that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
The clerk’s minutes do not reflect this finding, and as previously noted include a finding under former section 366.26, subdivision (c)(1)(D). It is well settled that when there is a discrepancy, the oral pronouncement prevails over the minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Price (2004) 120 Cal.App.4th 224, 242.)
The issue we must resolve is whether the evidence establishes that C.G. is a “parent” to S. and C. As previously noted, DPSS identified C.G. as an alleged father of S. There is no evidence that C.G. has any biological relationship to C., other than his purported belated and bald claim that he is her father. Mother did not identify C.G. as C.’s father and at one point also claimed that he was not the father of S. Dependency law recognizes four types of fathers: presumed, biological, alleged, and de facto. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15; In re Jerry P. (2002) 95 Cal.App.4th 793, 801; In re Crystal J. (2001) 92 Cal.App.4th 186, 190.) A presumed father is a man who meets one or more statutorily specified criteria under Family Code section 7611. That section specifies several situations in which a man may achieve presumed father status, the most common of which occurs when a man “‘receives the child into his home and openly holds out the child as his natural child.’ ([Fam. Code,] § 7611, subd. (d).)” (In re Liam L. (2000) 84 Cal.App.4th 739, 745.) A biological father is one whose paternity of the child has been established but who has not established that he qualifies as the child’s presumed father. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. (Ibid.) Because paternity is not established, an alleged father does not have a cognizable interest in the child. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) He has only the right to notice of the proceedings in order to provide him with an opportunity to appear and assert a position, including his paternal status. (Id. at p. 1408.)
Because the concept is not relevant in this case we will not discuss defacto fathers.
The evidence in this case at best shows that C.G. is one of two alleged fathers of S. Because he did not pursue paternity testing, he did not establish that he has a cognizable parental interest in the child. In other words, the evidence is insufficient as a matter of law to establish that C.G. is the father, and therefore a parent, of S. In the absence of evidence to show that he is a parent, the exception under former section 366.26, subdivision (c)(1)(A) cannot apply and the trial court erred in finding otherwise.
No evidence was presented to show that C.G. had any legally recognized paternal relationship with C. He was not identified as her alleged father in any of the pleadings or social worker’s reports, and he did not establish paternity. Moreover, although he claimed he was her father, C.G. did not take the child into his home and otherwise hold her out to the world as his child. At most, C.G. had contact with C. during the nine months in which she lived in the home of his cousin, Ta.W. Although Ta.W. stated at the hearing on C.G.’s section 388 petitions that, “He’s done very well helping me with his children,” there is no evidence to show the nature of that help or the extent and frequency of his contact with the children.
Because he did not establish his paternity, C.G. has no interest in S. or C. that the court may recognize and therefore the evidence is insufficient as a matter of law to show that he is a “parent” within the meaning of former section 366.26, subdivision (c)(1)(A). In addition, and even if we were to recognize C.G. as the parent of both C. and S., there is simply no evidence that he maintained regular contact with the children. In fact, the record suggests the opposite. The social worker reported that C.G. telephoned her on July 25, 2006, which was his first contact with DPSS since the case was initiated on June 2, 2003. C.G. did not request visits with the children through DPSS and although his cousin testified at the hearing, as noted above, that he helped her with the children, she did not provide any details about the nature or frequency of the contact. No evidence was presented at the section 366.26 hearing to show that mother maintained regular visitation and contact with the children. Consequently, the evidence presented in the trial court does not support the trial court’s finding that the exception set out in former section 366.26, subdivision (c)(1)(A) to termination of parental rights applies.
Although it is not clear to us that the trial court made a finding under former subdivision (c)(1)(D) of section 366.26, the reporter’s transcript does include the trial court’s statement, “[P]ursuant to the D, the Court finds legal guardianship is in the best interests of these minors.” Assuming “the D” is a reference to former section 366.26, subdivision (c)(1)(D), the evidence is equally insufficient to support the trial court’s finding that the exception applies in this case.
As previously noted, the clerk’s minutes include findings that effectively mirror the language of former section 366.26, subdivision (c)(1)(D).
At the time of the selection and implementation hearing in 2007, former section 366.26, subdivision (c)(1)(D) created an exception to termination of parental rights when there is evidence to show “[t]he child is living with a relative [or] foster parent . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative, [or] foster parent . . . would be detrimental to the emotional well-being of the child. This subparagraph does not apply to any child who is living with a nonrelative and who is either (i) under six years of age or (ii) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together.”
We grant the request of DPSS to take judicial notice of S.’s birth date as evidenced by a certified copy of her birth certificate. S. was under the age of six at the time of the section 366.26 hearing.
C.G.’s failure to establish his paternity of S. and C. precludes a finding that his cousin, Ta.W., is a relative of either girl. But even if she were a relative, the evidence recounted above is insufficient as a matter of law to establish that as a result of “exceptional circumstances” Ta.W. was unable or unwilling to adopt S. and C. The evidence, charitably characterized, shows Ta.W. preferred guardianship to adoption. That showing does not rise to the level of an exceptional circumstance that would overcome the statutory preference for adoption as the permanent plan.
Mother asks that we take judicial notice of the legislative history of amendments to section 366.26 that became effective in 2008, and create a preference for legal guardianship by a relative over adoption by a nonrelative. The amendment to which the legislative history in question relates took effect in 2008, which is after the trial court issued its order in this case selecting guardianship as the permanent plan. The amendment and therefore the legislative history are not relevant to any issue in this appeal. Moreover, as discussed above, the evidence is insufficient as a matter of law to show that Ta.W. is a relative of either S. or C. Because she is not a relative, the amendment would not apply, even if it had been enacted earlier and were in effect at the time of the selection and implementation hearing in this matter. Therefore, mother’s judicial notice request is denied.
In short and simply put, neither of the exceptions cited by the trial court is supported by the evidence presented in this case. Therefore, the trial court erred in finding otherwise and ordering legal guardianship as the permanent plan for C. and S. Because the evidence does not overcome the statutory preference for adoption as the permanent plan, we must reverse the judgment and remand the matter to the trial court for a new selection and implementation hearing.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court with directions to conduct a new selection and implementation hearing in accordance with section 366.26.
We concur: Gaut, J., King, J.