Opinion
B203192
9-8-2008
In re Y.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NELSON N., Defendant and Appellant.
Joseph D. Mackenzie, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
In the juvenile court, Nelson N. (father) unsuccessfully sought presumed father status and reunification services with his biological daughter Y.S. We affirm the denial of presumed father status and reverse the denial of reunification services. We remand the case to the juvenile court to conduct a new hearing to determine if reunification services would serve Y.S.s best interest.
FACTUAL AND PROCEDURAL BACKGROUND
The Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition on January 25, 2007, when Y.S. was eight months old. The petition (as subsequently modified) alleged that father had a history of violence with mother including placing a screwdriver to mothers neck when mother was pregnant. Mother was a periodic abuser of alcohol and marijuana, which sometimes rendered mother incapable of providing Y.S. with regular care and supervision. On occasion, mother had been unable to adequately protect and supervise Y.S. Mother left Y.S. with an unrelated caretaker without making an appropriate plan on at least one occasion. Mother eventually pled no contest, and she is not a party to this appeal.
Undesignated statutory citations are to the Welfare and Institutions Code.
Mothers other two children are living with their father (not Mr. N.) following a voluntary family maintenance service plan.
Mother appeared at the detention hearing and stated that she was not married and that father did not know Y.S. was born. DCFS reported that mother said father abused her and tried to kill her. Father "backed off because she told him she was pregnant . . . she told Mr. [N.] that she had a[n] abortion and . . . he has never seen the child."
Father did not appear at the detention hearing; his whereabouts were then unknown. When father was located, he stated that he wanted custody of Y.S. if a paternity test identified him as Y.S.s biological father. Father reported that he had sex with mother seven to 10 times but did not know that she was pregnant and later indicated that mother told him she had an abortion. Father denied that the relationship was abusive. The court issued an order for biological testing to establish paternity on May 18, 2007.
Father appeared on June 25, 2007, and was provided counsel. DCFS was ordered to facilitate visits for father. On October 3, 2007, the court found father to be Y.S.s biological father. On October 15, 2007, the court ordered monitored visits for father at least two times a week. That same day, father completed a form stating that he believed he was Y.S.s parent and asked the court enter a judgment of parentage. Father indicated that he had not told anyone he was the parent and had not participated in any activities with Y.S. because he just learned the paternity test results. Father stated he had not provided any money to Y.S. for the same reason and further indicated that he wanted custody and would in the future provide for Y.S.
Father testified at a hearing to adjudicate the petition and his right to reunification services. He testified that he was in a purely sexual relationship with mother for two months. They never lived on the street together. Father was not violent toward mother. Mother did not tell father she was pregnant, and father made no attempt to contact mother after the relationship ended. Father found out about Y.S. when he received papers regarding child support. Father never used drugs with mother. Father wanted custody of Y.S.
Mother testified that she met father when she was working at a bar. They began a sexual relationship in July 2005. They lived together on the streets for three months. When father quit his job, he became violent. Both mother and father were using methamphetamine and father introduced mother to methamphetamine. When father put a screwdriver to mothers neck, mother told him she was or might be pregnant. That same night, mother had brought beer and crystal methamphetamine to their room. Father was violent another time when mother refused to give him money.
The court sustained the allegation in the petition with respect to fathers domestic violence. Both fathers counsel and Y.S.s counsel requested reunification services for father. The court found mother to be credible. The court found that father was not a presumed father and denied him reunification services. The court noted that father appeared in the proceedings in June, but did not hold himself out as Y.S.s father at that time. The court stated, "[S]ince late June you have had an opportunity to hold yourself out as the father, tell family members, provide support, provide things to the child . . . ." The court emphasized that father instead waited three and a half months until he received the DNA test results.
With respect to father, the juvenile court stated, "The one thing I will do is order the Department to provide the father with referrals for weekly random drug testing, and at some point, if the father does domestic violence counseling, is testing clean, is visiting with the child, Ill consider a 388 to gran[t] him reunification services, but up until now and it would [be] easy [for] him to show a change in circumstance. He needs to show hes visiting regularly. That hes held himself out as father to family members and friends. That hes testing clean and enrolled in programs on his own. That would seem to be substance abuse programs. If he has missed or dirty tests, it would seem to be parenting education and domestic violence counseling. [¶] The court is declaring — I have found him to be biological. Today Im declaring him to be the father per the paternity form, which does not mean presumed father, but I am not finding that he rises to level of a presumed father, but he can work up towards that."
Father timely appealed.
DISCUSSION
I. Presumed Father Status
"Presumed fatherhood, for purposes of dependency proceedings, denotes one who `promptly comes forward and demonstrates a full commitment to his paternal responsibilities—emotional, financial and otherwise[.]" (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.) Father argues that it was in Y.S.s best interest to find him a presumed father under section 361.5. That statute, however, does not govern presumed fathers.
"In order to become a `presumed father, a man must fall within one of several categories enumerated in Family Code section 7611. Under Family Code section 7611, a man who has neither legally married nor attempted to legally marry the childs natural mother cannot become a presumed father unless (1) he receives the child into his home and openly holds out the child as his natural child, or (2) both he and the natural mother execute a voluntary declaration of paternity." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595; see also In re Julia U. (1998) 64 Cal.App.4th 532, 540 ["In order to become a presumed father, a father must fall within one of several categories enumerated in Family Code section 7611"].)
There is no dispute that father never executed a voluntary declaration of paternity. Therefore, the real issue is whether he received Y.S. into his home and openly held her out as his natural child. In support of that claim, father states and there is no dispute that (1) paternity testing established that he is Y.S.s biological father; (2) he requested paternity testing when informed of the dependency proceeding; (3) he expressed a desire for custody of Y.S. if paternity testing demonstrated her to be his biological daughter; and (4) after receiving test results, he requested the court enter a judgment of parentage. He argues that therefore the court should have awarded him presumed father status. He also argues that he was precluded from receiving Y.S. into his home and holding her out as his child because mother told him that she had an abortion.
Fathers request for paternity testing and his request for custody upon learning that he is Y.S.s biological father do not show that he received Y.S. into his home or held her out as his own. By his own statements, he did not. "[T]o become a presumed father, a man who has neither married nor attempted to marry his childs biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home." (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.) Fathers request for a paternity test is not equivalent to publicly admitting paternity or physically bringing Y.S. into his home.
There was evidence in the record that mother told father she had an abortion. "[W]ith respect to biological fathers [Family Code] 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." (In re Jerry P., supra, 95 Cal.App.4th at p. 812.)
However, here, the trial court concluded that father did not promptly come forward and demonstrate as well as he could under the circumstances a full commitment to his parental responsibilities. This finding is supported by the record. (See In re Salvador M. (2003) 111 Cal.App.4th 1353, 1358 [appellate court applies substantial evidence standard of review].) Father testified that sometime before the dependency proceeding he learned that Y.S. might be his daughter when notified of a child support proceeding. Then, in June 2007, the court permitted father monitored visits with Y.S. twice weekly. Father did not seize this opportunity and did not hold Y.S. out as his child. Even assuming mother told father she had an abortion, once father was aware of Y.S. he took no steps to visit her or hold her out as his own or to develop a personal, financial, or emotional relationship with her. While Father appears to blame DCFS for the fact that he never visited, he does not show that he ever even attempted to visit. The only thing father did was request a paternity test and wait for the results. That does not demonstrate a full commitment to parental responsibilities. (See In re Elijah V. (2005) 127 Cal.App.4th 576, 583-584.)
Father correctly points out that the date father was informed of the child support proceeding is not in the record. Father did not attempt to place such evidence in the record in support of his request to be declared a presumed father. It was fathers burden to show he was entitled to presumed father status. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652-1653.)
II. The Juvenile Court Abused Its Discretion in Denying Father Reunification Services
Contrary to fathers argument, section 361.5 does not allow the trial court to find father to be a presumed father. (In re Zacharia D. (1993) 6 Cal.4th 435, 451 ["only a presumed, not a mere biological, father is a `parent entitled to receive reunification services under section 361.5"].) It does however grant the trial court discretion to provide reunification services to father even though father had achieved only the designation of biological father. "The purpose of reunification services is to `reunite the family in a situation where the best interests of all concerned, the child, the parent and society as a whole, are well served." (In re Sarah C. (1992) 8 Cal.App.4th 964, 975.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Section 361.5, subdivision (a) provides in part: "Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child."
The juvenile court did not apply the best interest of the child standard and did not consider whether providing father reunification services would benefit Y.S. The failure to make the required determination was an abuse of discretion. (See In re Vincent M. (2008) 161 Cal.App.4th 943, 956.) The only evidence relied upon by the juvenile court was that father requested a paternity test before taking steps to bond with Y.S. Standing alone, this fact is insufficient to support the denial of reunification services because it does not show that reunification services would fall outside Y.S.s best interest.
This is not a case where father waited until the end of the dependency proceeding to request reunification services and custody of his biological daughter. As soon as he was provided notice of the proceedings, father indicated a desire to have custody of Y.S. if tests revealed she was his biological daughter. Fathers request for reunification services was made as soon as he received the paternity test results and before the section 366.26 hearing. At that stage, the focus is on the parents interest in reunification. (In re Vincent M., supra, 161 Cal.App.4th at p. 955.) No other father was requesting presumed father status and there was no evidence that another father had developed a relationship with Y.S. There was no indication that reunification services would be futile or that father was unable or unwilling to learn parenting skills. To the contrary, the court suggested to father that he could relatively easily demonstrate a change in circumstance.
We do not agree with respondents argument that there was no prejudice to father. Time is a critical factor in dependency proceedings. When the dependency proceeding is commenced, family preservation is paramount. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Once the reunification period is terminated, the focus of the proceeding shifts from the parents focus on reunification to the childs need for stability and permanency. (In re Vincent M., supra, 161 Cal.App.4th at p. 955.) Father therefore has a limited period of time to demonstrate that it is possible for him to reunify with Y.S. The purpose of reunification services are to assist father in reunifying, and the courts failure to exercise its discretion in determining whether reunification services for father were in Y.S.s best interest prejudiced father.
Nothing in the record indicates it would not be in Y.S.s best interest to grant father reunification services. However, a juvenile court must consider "the totality of the childs circumstances when making decisions regarding the child." (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095.) As father appears to recognize when he requests "further hearing," because our record is limited, the juvenile court is better positioned to assess Y.S.s best interest. Therefore, even though there is no contrary evidence in the record, we remand the case to the juvenile court for a further hearing in which it may be helpful to consider current information. (Cf. In re Hunter S. (2006) 142 Cal.App.4th 1497, 1508.)
DISPOSITION
The portion of the juvenile courts order denying father reunification services is reversed. In all other respects, the juvenile courts order is affirmed. The case is remanded to the juvenile court. The juvenile court shall apply the appropriate standard, considering the best interest of Y.S. and determine if father is entitled to reunification services.
We concur:
RUBIN, J.
FLIER, J.