Opinion
A156618
11-21-2019
In re H.N., a Person Coming Under the Juvenile Court Law. MARIN COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. R.N., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. Nos. JV26731A, JV26732A, JV26733A)
R.N. appeals from a disposition order in this juvenile dependency matter commenced under Welfare and Institutions Code section 300, contending that he should have been elevated to presumed father status. We will affirm the order.
Except where otherwise indicated, all statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
Because the appeal raises only the issue of presumed father status, we abbreviate our recitation of the facts and procedural history accordingly.
H.N. (Minor), as well as his half-siblings Ti.N. and Tu.N. (Siblings), lived with their biological mother T.N. (Mother) and the biological father of the Siblings, appellant R.N. (Appellant), until the children were removed by the Marin County Health and Human Services (Department) on October 26, 2018. At the time, the Minor was 15 years old. Appellant identifies as the Minor's step-father and reports raising the Minor from as early as 2005, when Ti.N. was born. The Minor's biological and adoptive father, C.L., has had no significant contact with the Minor since he was six months old.
The Department filed a dependency petition pursuant to section 300, subdivision (g) on October 30, 2018. The petition identified Appellant and C.L. as alleged fathers.
In its report of November 26, 2018, the Department provided additional information concerning, among other things, the Minor's paternity. C.L., the Minor's biological father, explained that the Minor was born during his six-year on-and-off relationship with Mother. Mother told him that he was the Minor's father. Although C.L.'s name did not appear on the Minor's birth certificate, C.L. legally adopted the Minor at the age of six months to ensure that the Minor would have his last name. Around the time of the adoption, however, Mother left C.L. and took the Minor with her; a portion of C.L.'s social security benefits went to the Minor for his support. C.L. did not see the Minor again until 2011 or 2012, when the Minor was staying with a maternal relative. When the Minor was returned to Mother's care, Mother insisted that visits be supervised and C.L. lacked the resources to go to court to enforce his parental and visitation rights. C.L. added that he had phone contact with the Minor after the Minor was placed in foster care and that he wanted a relationship with the Minor, but he lacked the resources to provide custodial care.
At the detention hearing on October 31, 2018, the juvenile court ordered the children detained, finding there would be a substantial danger to them if they remained with Mother and Appellant. The court appointed counsel for the children, Mother, and Appellant and ordered supervised visitation.
Also at the detention hearing, Appellant's counsel orally requested presumed father status for all three children, but added that she understood "we may need more information about his relationship with" the Minor. Counsel stated that Appellant had raised the Minor since before 2005. The court granted the request for presumed father status as to the Siblings, but determined the request as to the Minor might be premature. Appellant's counsel did not object, noting that she had not had the opportunity to complete a Judicial Council Form JV-505 (JV-505) for the Minor (although Appellant had completed a JV-505 for each Sibling). The court's order after the detention hearing provided: "The court inquired of the child's parents present at the hearing and other appropriate persons present as to the identity and addresses of all presumed or alleged parents of the child. All alleged parents present during the hearing who had not previously submitted a Statement Regarding Parentage (Juvenile) (form JV-505) were provided with and ordered to complete form JV-505 and submit it to the court." The order identified both Appellant and C.L. as an "alleged father" of the Minor.
The Department filed a second amended dependency petition on December 7, 2018, alleging neglect of all three children pursuant to section 300, subdivision (b) and neglect of the Minor pursuant to section 300, subdivision (g).
At the jurisdictional hearing on December 10, 2018, Appellant and Mother submitted on the issue of jurisdiction. The court sustained the allegations, took jurisdiction of the children, and suspended contact between the Minor and Mother and Appellant, finding that continued contact would be detrimental to the Minor. The court also appointed counsel for C.L., who was not present.
The Department served its disposition report of January 7, 2019, and the matter was set for a contested disposition hearing. After the hearing, the court found there was neglect in the family home, including domestic violence and Mother's ongoing substance abuse. The court ordered the Minor to remain out-of-home with family reunification services, but continued to prohibit contact between the Minor and Mother and Appellant because such contact would be detrimental to the Minor's best interests. The order identified Appellant as the Minor's "alleged father."
The court did not revisit the issue of presumed father status at the disposition hearing. Nor does Appellant point us to any time after the detention hearing that he filed a JV-505 as to the Minor or otherwise pursued his earlier request for presumed father status. At the hearings after the detention order, Appellant's counsel had not objected when Appellant was identified as the Minor's "alleged" father, instead characterizing Appellant as "father of the girls" without any claim as to the Minor.
This appeal followed.
II. DISCUSSION
A. Paternity Law in Juvenile Dependency Proceedings
A father's status as "alleged father," "biological father," or "presumed father" determines his rights and extent of participation in dependency proceedings. (In re T.R. (2005) 132 Cal.App.4th 1202, 1209; In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) An alleged father—a potential father whose paternity has not yet been established—is entitled to notice and an opportunity to try to change his paternity status, but is generally not entitled to appointed counsel or reunification services. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) A biological father—whose biological paternity has been established but who has not achieved presumed father status—also has limited rights. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.) A presumed father has the right to appointed counsel, custody (absent a finding of detriment), and a reunification plan and services. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801; In re T.R., supra, 132 Cal.App.4th at p. 1209.)
An alleged father may seek to have his status elevated to that of presumed father by demonstrating entitlement under Family Code section 7611. For example, even if the alleged father was not married to or attempted to marry the child's biological mother around the time of the child's birth, he may qualify as a presumed father if he received the child into his home and openly held out the child as his natural child. (Fam. Code, § 7611, subd. (d).) To qualify under this provision, the person must have a "fully developed parental relationship" with the child—not just a role of caretaker. (R.M. v .T.A. (2015) 233 Cal.App.4th 760, 776.) What matters is the familial relationship the person has with the child rather than a biological relationship. (In re Alexander P. (2016) 4 Cal.App.5th 475, 485.) In general, a presumed father is one who comes forward promptly and demonstrates a full commitment to parental responsibilities. (In re T.R., supra, 132 Cal.App.4th at pp. 1209-1210.)
At the detention hearing or as soon thereafter as practicable, the juvenile court must inquire of the mother and any other appropriate person the identity and address of all presumed or alleged fathers. (§ 316.2.) This inquiry includes asking questions related to paternity and whether any man qualifies as a presumed father. (361.2, subd. (a).) In this case, the court made the inquiry at the detention hearing.
The court must continue this inquiry at hearings after the detention hearing "until or unless parentage has been established." (Cal. Rules of Court, rule 5.635(b).) If there has been no prior determination of parentage, the court "must take appropriate steps to make such a determination." (Cal. Rules of Court, rule 5.635(e).) Among other things, the court must make available a JV-505, and "[a]ny alleged father and his counsel must complete and submit [that form.]" (Cal. Rules of Court, rule 5.635(e).) On the JV-505, the alleged father can communicate his position on parentage to the court, including any claim or denial of paternity, request for counsel, request for genetic testing, proof of marriage to the mother, and indicia of presumed father status. Page four of the JV-505 states: "If you want the court to decide if you are the child's parent, fill out this form."
If an alleged father files a JV-505, the court must determine the issue of parentage. (Cal. Rules of Court, rule 5.635(e).) Specifically, "[i]f a person appears at a hearing in a dependency matter . . . and requests a judgment of parentage on form JV-505, the court must determine: [¶] (1) Whether that person is the biological parent of the child; and [¶] (2) Whether that person is the presumed parent of the child, if that finding is requested." (Cal. Rules of Court, rule 5.635(h), italics added.) The court may order genetic testing or may make its determination based on testimony, declarations, and other evidence. (Cal. Rules of Court, rule 5.635(e)(3).) The person claiming presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement. (In re T.R., supra, 132 Cal.App.4th at p. 1210.)
B. Appellant's Failure to File a JV-505 or Provide Evidence
Appellant contends the court erred because it did not address the presumed father issue after the detention hearing (notwithstanding rule 5.635(b)) and never elevated Appellant to presumed father status. The Department counters that Appellant forfeited the right to be elevated to presumed father status because he did not file a JV-505 as to the Minor (see rule 5.635(e)(1), (h)) and did not object to the court's ruling at the detention hearing or the identification of Appellant as the alleged father.
First, to the extent Appellant might have waived anything by not filing a JV-505 or otherwise actively pursuing the presumed father issue, we note it would be a waiver only as to obtaining a presumed father finding at the disposition hearing; there is no indication that Appellant has lost the right to seek presumed father status thereafter.
Second, the question is not so much whether Appellant waived his right to become a presumed father (or his right to obtain a presumed father ruling) by not filing a JV-505, but whether Appellant ever presented sufficient evidence—in a JV-505 or otherwise—from which the court could determine that he met the qualifications for a presumed father under Family Code section 7611. The JV-505 is expressly designed for that purpose and is plainly contemplated by the rules of court, and Appellant was ordered to file one. Not only did Appellant not file a JV-505, he never submitted the information requested by the form in any other format or presentation. In light of Appellant's failure to make any substantial showing of entitlement to presumed father status, it cannot be said the court erred in failing to grant him that status. And to the extent the court fell shy of rule 5.635(b) by not raising the parentage issue at a hearing after the detention hearing, the error is harmless because Appellant has not demonstrated that he would have been elevated to presumed father status if the issue had been addressed.
In this regard, Appellant urges in his appellate briefs that he is entitled to presumed father status given his relationship with the Minor. He argues that he and Mother began living together around 2005 when the Minor was three years old, so with the exception of a few years when the Minor was placed in a legal guardianship (2011-2012), Appellant had been the child's "caretaker, custodian, provider and father figure." However, Appellant's citation to the record does not support that conclusion. Appellant also argues that the Minor lived in his home for nearly 14 years, receiving "food, shelter, affection and care in equal measure to [his] own biological children." But his citations to the record do not support that conclusion either.
Finally, any error in failing to elevate Appellant to presumed father status is harmless for another reason: Appellant is already enjoying the benefits of being one. Presumed father status would have entitled Appellant to appointed counsel, reunification services, and custody (absent a detriment finding); Appellant received appointed counsel and reunification services by virtue of his presumed father status as to the Minor's Siblings (and as the spouse of the Minor's custodial parent). He fails to show entitlement to custody of the Minor or anything else he would have obtained if he had been elevated to presumed father status also as to the Minor. (See In re Kobe A., supra, 146 Cal.App.4th at p. 1124 [harmless error because "[w]hether or not appellant sought to change his paternity status, the course of his relationship with [the child] and of the dependency case would not have been different"].)
III. DISPOSITION
The order is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BURNS, J.