Opinion
D071127
02-10-2017
In re R.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.D., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Phillips and Paula J. Roach, Deputies County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ4033) APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Phillips and Paula J. Roach, Deputies County Counsel, for Plaintiff and Respondent.
T.D., the biological father of infant R.C., appeals a dispositional order under Welfare and Institutions Code section 361, subdivision (c) denying his request to be named a Kelsey S. father. (Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).) We conclude substantial evidence supports the judgment and affirm.
Further references are to the Welfare and Institutions Code, unless otherwise indicated.
In Kelsey S., supra, 1 Cal.4th 816, the Supreme Court recognized parental rights of an unwed biological father who "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise" but is precluded from establishing a meaningful relationship with the child as a result of actions unilaterally taken by a third party. (Id. at p. 849.)
The dispositional order is an appealable judgment pursuant to section 395. (In re S.B. (2009) 46 Cal.4th 529, 531-532.)
FACTUAL AND PROCEDURAL BACKGROUND
In May 2016, the San Diego County Health and Human Services Agency (the Agency) filed a juvenile dependency petition alleging week-old R.C. was a child within the jurisdiction of section 300, subdivision (b). R.C.'s mother, B.C. (Mother), used drugs while pregnant, and R.C. tested positive for marijuana and methamphetamine at birth. The petition averred R.C.'s alleged father, T.D., had a history of methamphetamine use and a drug-related criminal record and that he was unable to provide regular care for R.C. The Agency sought a protective custody warrant, requesting the court detain R.C. in out-of-home care. The court detained R.C. in foster care.
Mother told the Agency either T.D. or T.H. could possibly be R.C.'s father. T.D. waited in the lobby of the hospital at the time of R.C.'s birth, but Mother claimed she was afraid and refused him entry. Mother had a restraining order protecting her from T.D. at the time of R.C.'s birth, but they had been in contact, and T.D. thought he was allowed to be present. Mother refused to put T.D.'s name on R.C.'s birth certificate, and neither alleged father signed a voluntary declaration of paternity.
At the detention hearing, Mother filed a parentage form stating T.D. had not provided support for R.C., was not at the hospital when R.C. was born, and had not done anything to claim R.C. as his own. T.D. filed a parentage form stating he told family and friends R.C. was his child; went with Mother to prenatal visits; and supported R.C. by purchasing baby supplies, holding him, singing to him, and feeding him. The juvenile court granted T.D.'s request for genetic testing and ordered supervised visits and services for Mother and T.D.
T.D. began his visits in mid-May. He saw R.C. twice a week for two hours per visit. R.C.'s foster mother reported concerns with T.D.'s behavior during the first visit. He was fidgety, made several trips to the bathroom claiming stomach flu, and ended the visit early. T.D.'s other visits went well.
In late May, a social worker interviewed Mother and T.D. Mother said T.D. was likely R.C.'s father and would make a "wonderful father." Mother admitted relapsing while pregnant and smoking half a gram of methamphetamine per week throughout her pregnancy. She attributed her drug use to relationship problems with T.D., not having stable housing, and living from "couch to couch."
T.D. reported a long history of drug use. He had completed a drug treatment program but relapsed in May 2015. He and Mother met at a sober living facility; they had been trying to get pregnant and wanted a child. T.D. thought Mother had relapsed in October 2015 while pregnant but claimed he could not confirm his suspicion. Two months before R.C.'s birth, Mother enrolled in a residential substance abuse treatment facility but asked T.D. to pick her up within days to take her to the doctor. T.D. returned Mother to the facility, but an hour later, he picked her up when Mother told him she had been kicked out. Mother later admitted she had left of her own volition. Mother broke up with T.D. on February 15, 2016, and cut off contact.
T.D. told the social worker he would soon be turning himself in to law enforcement to serve a nine-month sentence for violating the terms of his probation by possessing brass knuckles. He stated that if he was not sent to prison, he wanted R.C. placed in his care. In May 2016, T.D. told a social worker the date he needed to surrender to serve his sentence had been continued. He consistently refused the social worker's request for documentation as to when he was to report to criminal court, and he refused to meet with the substance abuse specialist. He stated he was active in a drug treatment program but did not provide documentation.
In June 2016, paternity results indicated T.D. was R.C.'s biological father. On June 9, 2016, the juvenile court declared T.D. R.C.'s biological father and entered a judgment of paternity. T.D. requested a trial date to determine jurisdiction and disposition; Mother submitted on the Agency's petition.
On June 17, 2016, social worker Helen Solivan asked T.D. to drug test, but he failed to do so, claiming he could not provide enough of a sample and had to leave to pick up a child from daycare. T.D. wanted to leave the testing site and return later, but testing site regulations did not allow it. T.D. called Solivan to say she was sabotaging his reunification with R.C. When Solivan responded that she had asked him to drug test early enough in the day to give him sufficient time, he replied he was busy at criminal court trying to determine when he would start serving his sentence.
On June 20, 2016, Mother sent Solivan a copy of a domestic violence restraining order protecting her from T.D. In her application, Mother alleged T.D. had threatened her, shoved her, thrown a suitcase at her, dented her car, hit her stomach with his fists, and stalked her with over 300 texts and calls in February 2016, when she was seven months pregnant. She indicated T.D. had also threatened R.C. by hoping he died at birth. After R.C. was born, Mother claimed T.D. grabbed her by the throat and told her to let him have R.C. or else and that he threatened her with brass knuckles. Mother claimed T.D. was still using drugs and was trying to use the dependency case to avoid going into custody for his probation violation.
Also on June 20th, T.D. cross-petitioned for a domestic violence restraining order. T.D. alleged Mother recently asked him to have no contact with her but then showed up outside his home one night seeking a place to stay. T.D. claimed he told her he would have to ask his aunt, at which point Mother started screaming and drove off, attempting to run him over. He also claimed Mother head-butted him in April 2016, splitting his nose. He claimed Mother hit herself in her stomach while she was pregnant and hid the brass knuckles in his car, leading to his probation violation. He alleged Mother threatened to have T.D. hurt or to hurt R.C. to prevent them from forming a relationship.
T.D. tested positive for alcohol on June 28, 2016, and failed to return three of Solivan's calls in late June and early July. T.D. told the Agency he lived with his aunt, Diane. However, Diane told Solivan T.D. just visited and did not live there. Diane stated T.D. and Mother had previously lived there but that Diane kicked Mother out because she suspected Mother was using drugs while pregnant. Although T.D. told the Agency he wanted R.C. placed with Diane, Diane stated she could not provide placement.
An Agency case plan submitted on July 11, 2016, required T.D. to complete parenting classes, undergo a substance abuse evaluation, follow recommended treatment, and attend counseling. T.D. submitted certificates indicating his participation in anger management, parenting, life skills, and substance abuse classes in 2009. The Agency repeatedly asked T.D. to verify his participation in services and the date he was to begin his sentence for the probation violation, but T.D. failed to provide verification.
At the contested jurisdiction and disposition hearing on August 16, 2016, the Agency recommended R.C. be placed in foster care, with services and supervised visitation for Mother and T.D. The court heard testimony from social worker Solivan and T.D. and received into evidence the Agency's reports, Solivan's curriculum vitae, Mother's clean drug test results from June and July, and a letter from Mother's drug treatment program.
Solivan testified T.D. was visiting R.C. twice a week and was consistently 14 minutes late. This was significant to her because the foster parents would only wait 15 minutes. Solivan testified she was still waiting for T.D. to provide information as to when he was going into custody.
T.D. testified he and Mother lived together from June 2014 to February 2016. They were excited for the pregnancy and went to four sonograms together. Their relationship began to deteriorate in November 2015. In December, Mother started disappearing for two or three days at a time, and T.D. suspected she was using drugs. He took her to a residential treatment facility in February 2016.
T.D. testified that since the dependency case began, he had visited and video-conferenced with R.C. on a weekly basis. He claimed he had asked for additional visits, including to accompany R.C. to doctor's appointments. T.D. reported he arrived to visits with a diaper bag, diapers, clothes, wipes, toys, books, and anything R.C. might need. He felt "extremely comfortable" caring for R.C. and felt prepared for R.C. to live with him. T.D. wanted R.C. placed with him or with one of his relatives. He testified he had raised his two adult daughters, who would also help care for R.C.
T.D. denied the allegations of threats and domestic violence in Mother's June 2016 restraining order application. He did concede it was "very possible" he had called and texted Mother over 300 times in February 2016—he said they were planning to marry when she disappeared without contact, and he was afraid for her and their unborn child. He suggested Mother was fabricating allegations in her restraining order application to keep him out of R.C.'s life.
T.D. admitted he had a history of methamphetamine use but testified he had been sober since July 2015, when he relapsed after eight years. He stated he had worked as a counselor and a sober living facility manager from 2010 to 2014 and was "very aware" he could not care for an infant while on methamphetamine. T.D. stated he was in a position now to care for R.C. and attended a support group and treatment services to maintain his sobriety. He stated he had enrolled in a substance abuse program in late July and had looked into parenting classes.
T.D. admitted a history of drug-related criminal charges but stated his last arrest in December 2015 was for petty theft, unrelated to drug charges. He was arrested in July 2015 for being under the influence and for drug possession, but charges were dropped. In May 2015 he was arrested for possessing brass knuckles, but there were no related drug charges in that case. As to his probation violation, T.D. suggested the criminal court might continue or modify his sentence to allow him to participate in reunification services.
When asked about his living arrangements, T.D. stated he lived with his aunt but had the option to sign a lease for an apartment. He clarified he had not yet signed the lease. T.D. stated he was unemployed.
During closing arguments, T.D.'s counsel asked the court to consider elevating him as R.C.'s Kelsey S. father, claiming Mother prevented him from signing the birth certificate at R.C.'s birth. T.D.'s counsel claimed T.D. was willing to sign a voluntary declaration of paternity.
After closing arguments, the juvenile court found the allegations in the dependency petition true by clear and convincing evidence, declared R.C. a dependent of the court, and ordered visitation and reunification services for Mother and T.D. The court ordered R.C. to remain in foster care and set a six-month review hearing for February 14, 2017. The court found it would be detrimental to place R.C. with T.D. The court found the evidence of addiction and domestic violence between T.D. and Mother "very concerning." Given T.D.'s past experience managing a sober recovery facility, the court further found he knew or should have known Mother was using controlled substances while she was pregnant with R.C. The court expressed "great concern about [T.D.'s] truthfulness," finding "his testimony to be a lot of disingenuous double talk" and finding some of his testimony lacked in credibility.
T.D. timely appealed.
DISCUSSION
T.D. argues the juvenile court erred when it did not declare him a Kelsey S. father. "The burden is on a biological father who asserts Kelsey S. rights to establish the factual predicate for those rights." (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679.) We review the juvenile court's determination as to whether T.D. met that burden for substantial evidence. (Id. at pp. 679-680; Adoption of Emilio G. (2015) 235 Cal.App.4th 1133, 1144-1145 (Emilio G.).) In applying this standard, our task begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the court's ruling. As we explain, we conclude substantial evidence supports the juvenile court's ruling.
The Uniform Parentage Act (UPA), Family Code section 7600 et seq., provides the statutory framework for parentage determinations and governs adoptions, paternity and custody disputes, and dependency proceedings. (In re D.A. (2012) 204 Cal.App.4th 811, 824.) The UPA distinguishes between alleged, biological, and presumed fathers; within the hierarchy, presumed father status ranks highest. (Ibid.) Only a presumed father is a parent entitled to receive reunification services under Welfare and Institutions Code section 361.5. (Ibid.)
Family Code section 7611 sets forth several rebuttable presumptions under which a person may qualify as a presumed father. (In re D.A., supra, 204 Cal.App.4th at p. 824.) In addition to the statutory presumptions, case law holds that an unwed biological father may be afforded parental rights when his attempt to achieve presumed father status under Family Code section 7611, subdivision (d) is thwarted by a third party and he "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise." (Kelsey S., supra, 1 Cal.4th at p. 849; In re Elijah V. (2005) 127 Cal.App.4th 576, 583 (Elijah V.).) The juvenile court considers the father's conduct both before and after the child's birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses commensurate with his ability to do so, and took prompt legal action to seek custody of the child. (Kelsey S., p. 849.)
Under Family Code section 7611, subdivision (d), an unmarried person is presumed to be the natural parent of the child if "[t]he presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." (See generally, Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 (Michael H.).)
To merit Kelsey S. status, an unwed biological father must sufficiently and timely demonstrate a full commitment to his parental responsibilities. (Kelsey S., supra, 1 Cal.4th at p. 849.) "Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate 'a willingness himself to assume full custody of the child—not merely to block adoption by others.' " (Ibid.) Critically, a biological father cannot compensate for his failure to promptly come forward during the mother's pregnancy by attempting to assume parental responsibilities many months afterwards. (Michael H., supra, 10 Cal.4th at pp. 1053-1055 [biological father not a Kelsey S. father because he demonstrated a wavering commitment to the child during the pregnancy, even though his efforts after the child's birth " 'were nothing short of impressive' "].)
Substantial evidence supports the juvenile court's finding T.D. was not a Kelsey S. father. T.D. knew Mother was pregnant five weeks into her pregnancy, and they lived together until February 2016, when she was seven months pregnant. For the first seven months of Mother's pregnancy, T.D. failed to demonstrate as full a commitment to his parental responsibilities as circumstances would have permitted. (Michael H., supra, 10 Cal.4th at p. 1060.)
Mother indicated T.D. punched her stomach when she was seven months pregnant and stated he hoped R.C. would be born dead. Father conceded he may have called and texted Mother over 300 times after she left him in February 2016 and that he came to the hospital at R.C.'s birth despite knowing Mother had a domestic violence restraining order against him. Although T.D. contended Mother punched herself in the stomach while pregnant and denied any domestic violence, the juvenile court expressly found the relationship was volatile, and we review the record in the light most favorable to that finding. T.D.'s violence harmed Mother not only physically but emotionally; Mother told the Agency she had "a history of depression related to domestic violence with [T.D.]." The record reflects relationship problems also contributed to Mother's drug use during pregnancy. Mother smoked half a gram of methamphetamine per week throughout her pregnancy. She attributed her drug use to "difficulties in the relationship between her and [T.D.], not having stable housing, and living from 'couch to couch.' "
We also note the juvenile court did not find T.D.'s trial testimony credible. The record indicates many inconsistencies between T.D.'s trial testimony and his statements to the Agency. For example, at detention, T.D. told the Agency he had last used methamphetamine in December 2015. In May 2016, T.D. told the Agency he had last used methamphetamine in May 2015. At trial, he testified he had last used methamphetamine in July 2015, with Mother. --------
Although Kelsey S. and its progeny do not require the biological father to " 'love or dote on the mother, propose marriage to her, or be a compatible mate,' it is required 'that he provide care and support for the mother's physical and emotional health to the extent it affects the health and welfare of the child she is carrying.' " (Emilio G., supra, 235 Cal.App.4th at p. 1145.) T.D.'s failure to provide physical and emotional support to Mother during the first seven months of her pregnancy undermines his claim to Kelsey S. status. (Emilio G., at p. 1145 [biological father's physical violence and emotional manipulation of mother "were not the actions of an emotionally supportive father"].)
Moreover, the record supports the juvenile court's finding T.D. knew about Mother's drug use during pregnancy but failed to take appropriate protective action. T.D. met Mother at a sober living facility and had known her for several years. They used methamphetamine together about a month before Mother became pregnant with R.C. T.D. had a long history of drug use himself and had managed a sober living facility for four years. The Agency believed T.D. would have been able to recognize signs of Mother's drug use given their history and discounted his claim he was not sure whether she was using. Indeed, even T.D.'s aunt Diane recognized Mother was using drugs during the pregnancy. T.D. admitted to the social worker he suspected Mother was using drugs in October 2015, a few months into the pregnancy. Even if we credit his trial testimony he only suspected drug use in December 2015, T.D. waited two months thereafter to take Mother to a residential treatment facility and picked her up from that facility within days.
In short, T.D.'s actions during Mother's pregnancy do not demonstrate the prompt and full commitment to parental responsibilities Kelsey S. requires. That alone could end our inquiry. (Michael H., supra, 10 Cal.4th at pp. 1053-1055.)
There is also substantial evidence T.D. did not demonstrate a full commitment to his parental responsibilities after R.C.'s birth. (Cf. Michael H., supra, 10 Cal.4th at p. 1053 [biological father's efforts post-birth had been " 'nothing short of impressive' "].) There is ample evidence T.D. was still using drugs. T.D.'s relative told the Agency she believed he was still using in May 2016 based on his twitching and non-stop talking. R.C.'s foster mother expressed concern that T.D. fidgeted, took repeated bathroom breaks, and cut his first visit with R.C. short. T.D. failed to drug test in June 2016 and tested positive for alcohol a week later. The Agency gave T.D. a list of county resources and referred him to a substance abuse specialist in May 2016. Despite repeated requests, he never verified his participation in treatment services and did not return social worker Solivan's phone calls. Even if we credit T.D.'s trial testimony, he did not enroll in treatment until late July, months after the initial referral. Mother suggested T.D. was still using drugs and using the dependency case as a tool to avoid going into custody for his probation violation.
By trial, there was still no clarity as to where T.D. lived or whether he could provide for R.C. T.D. claimed he lived with his aunt Diane and had the ability to sign a lease downtown. However, Diane denied he lived there and opposed placing R.C. in her home. T.D. was unemployed and faced an impending sentence for his probation violation. Although he suggested his relatives could "help out," T.D. did not offer concrete means of personally supporting R.C. (Adoption of O.M., supra, 169 Cal.App.4th at p. 678 [biological father could not demonstrate a willingness to personally assume full custody of the child, as required by Kelsey S., even though his parents had agreed to assume full custody during his lengthy prison term].) The juvenile court reasonably found T.D. had not promptly or sufficiently committed to his parental responsibilities under the circumstances to qualify as a Kelsey S. father. (See In re D.S. (2014) 230 Cal.App.4th 1238, 1246 [biological father who provided only minimal financial support to minor, threatened minor's caregiver, and did not vigorously assert his legal rights until dependency case began was not a Kelsey S. father].)
T.D. argues Mother thwarted his attempts to establish a relationship with R.C. He claims he was at the hospital at R.C.'s birth but Mother refused to let him enter or sign R.C.'s birth certificate. However, absent a full commitment by T.D. to his parental responsibilities, Mother's actions are irrelevant to the determination of Kelsey S. status. (Elijah V., supra, 127 Cal.App.4th at p. 584 ["Armando asserts that he should be considered a Kelsey S. father because Michelle did not let him see Elijah. However, because he did not fully commit to his parental responsibilities, her actions in this regard are irrelevant."].)
In sum, substantial evidence supports the juvenile court's determination T.D. was not a Kelsey S. father.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.