Opinion
A150084
11-03-2017
In re K.K., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. K.K., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. OJ13020234-01, OJ13020235-01)
K.K. (Mother) appeals from an order granting Fred R. (Father) presumed father status as to her two daughters, K.K. and Z.R., under Family Code section 7611, subdivision (d). Mother contends the order was based on an "objectively inaccurate assumption" that Father had been unaware of the minors' dependency case. We will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
A. Dependency Background
In January 2013, the Alameda County Social Services Agency (Agency) filed a petition regarding the minors pursuant to Welfare and Institutions Code section 300. As relevant here, it was alleged that the whereabouts of Father were unknown. The minors were detained.
According to the Agency's Jurisdiction/Disposition Report, Father's whereabouts remained unknown, but Mother reported that he lived in Salinas and was the father of all of her children. In February 2013, the court deferred the paternity inquiry, assumed jurisdiction over the minors, and ordered family maintenance services for Mother.
In its Status Review Report filed on July 12, 2013, the Agency advised that Mother and Father both identified Father as the father of the minors. The child welfare worker encouraged him to attend a court hearing to become a presumed father and gave him a phone number to request counsel. The report also noted that Mother had requested that the minors live with Father for the summer, as they had in the past; when she was informed that the Agency would have to first meet with Father, however, mother decided not to send the minors to stay with Father because she did not want him to know about her "situation."
Father appeared at the hearing on August 1, 2013, and sought appointment of counsel. The paternity inquiry was deferred to August 6, 2013. On August 6, 2013, Father did not appear because he had to work. The court reserved a finding on presumed father status until Father appeared personally to make the request.
The Status Review Report for the hearing on January 17, 2014, advised that the minors had not seen Father since they spent approximately two weeks in his home the prior summer. The proof of service does not reflect that Father (or any attorney on his behalf) was served with notice of the status review hearing. Father's attorney nonetheless appeared at the hearing.
The Status Review Report for the hearing on July 3, 2014, indicated that Father's attorney, but not Father personally, was sent notice. The report advised that Father had frequent telephone contact with Z.R. and expressed willingness to have the minors live with him if they were removed from Mother's custody. The proof of service represented that notice of the review hearing was sent to Father's attorney and to Father's address, but neither Father nor his attorney appeared at the hearing.
The Status Review Report for the hearing on December 18, 2014, indicated that Father's attorney, but not Father, was sent notice. The Agency advised that Z.R. had reported telephone contact with Father and had seen him occasionally. Mother claimed that she had not received child support from Father. The proof of service stated that a notice of hearing was sent to Father's attorney and to Father's address, but Father did not appear personally at the hearing.
The Status Review Report for the hearing on June 2, 2015, again indicated that Father's attorney, but not Father, was sent notice. Father had informed the child welfare worker that he believed the minors were "fine" and he did not have concerns about their well-being. He had maintained contact with the minors by phone "a couple of times a week," saw them over the Christmas holidays, and sent them money for their birthdays. The proof of service stated that a notice of hearing was sent to Father's attorney and to Father's address, but Father did not appear personally at the hearing.
The Interim Review Report for the hearing on July 16, 2015, indicated that Father's attorney, but not Father, was sent notice. The report advised that the minors had stayed with Father in Salinas for the summer. The proof of service stated that notice was sent to Father's attorney and to Father's address.
The Status Review Report for the hearing on November 17, 2015, continued to indicate that Father's attorney, but not Father, was sent notice. The report reflects that Mother had sent the minors on an extended visit with Father, and that Mother, Father, and the minors were upset that the Agency instructed Mother to reclaim the minors from Father before the previous hearing. Father had maintained phone contact with both minors. The proof of service stated that notice was sent to Father's attorney and to Father's address, but neither Father nor his attorney appeared at the hearing.
The Agency's Status Review Report for the hearing on June 13, 2016, indicated that Father's attorney, but not Father, was sent notice. Father had continued to maintain phone contact with the minors. The proof of service stated that notice of the review hearing was sent to Father's attorney and to Father's address, but Father did not appear personally at the hearing.
The Agency's Status Review Report for the hearing on November 29, 2016, finally indicated, on both the proof of service and in the report, that Father was personally sent notice of the hearing. According to the report, Father told the Agency that he wanted to be elevated to presumed status, and he was open to having the minors placed in his care and custody. The child welfare worker arranged for paternity testing, and Father participated. At the minors' request, they spent four weeks with Father during the summer. The child welfare worker visited the minors in Father's home, which was orderly, clean, and safe. Father and his wife expressed significant concern about the minors' emotional and educational standing. They also favored the minors' visits during the summer, although the visits were challenging because the minors had to adjust to rules, boundaries, and structure. Father had actively participated in the Team Decision Meeting and was open to the minors living with him. He also began the process of being approved as a "Non Related Extended Family Member" pending an elevation of his status to presumed father.
B. Presumed Father Ruling
Father appeared with counsel at the hearing on November 29, 2016, and the court conducted a paternity inquiry.
Mother testified that Father was the father of both minors, but she and Father had never married or lived together. According to Mother, she informed Father of her pregnancies with K.K. and Z.R., but Father did not attend their births and his name was not on their birth certificates. By Mother's account, Father did not tell his friends and family about either pregnancy, and he denied parentage of the minors until K.K. was seven and Z. R. was four. Mother also claimed that Father did not consistently provide financial support, but she acknowledged that there was no child support order and Father did provide money if the minors told him they needed it. Both minors know Father as their "dad." Although Mother did not think Father was really a part of the minors' lives, she admitted that he had recently been "active in [Z.R.'s] life."
Father testified that he had five children with Mother. He admitted that he was not at the hospital when K.K. was born, but he told his mother, sisters, and brother when he found out that Mother was pregnant with her, he held her out as his own child, and he lived with Mother and K.K. "off and on." Although Father was not around a lot due to drugs and incarceration, when he was released from custody he engaged with K.K., visited her, and inquired how she was doing. He told others about Z.R. as well, and when he got out of "rehab," he would pick up the minors and take them to his place for a day or two. Even though he was homeless at times and working at a car wash, he provided financially for the minors periodically. The minors stayed with Father for about three weeks in the summer of 2014 and approximately a month in the summer of 2015. He currently maintained phone contact with both minors, and he travelled from Salinas to Oakland to visit the minors, or the child welfare worker would bring the minors to him for a visit.
Z.R., although not a sworn witness, informed the court through her attorney that she and her sister had been visiting Father's home over the summer since she was about four or five years old.
The Agency was in favor of the court elevating Father to presumed father status, because the Agency believed it was in the minors' best interest. Father's counsel argued that, although Father had not been perfect, the minors recognized him as their father and he was trying to become more involved in their lives. The minors' counsel stated that both minors spent time with Father and recognized him as their father.
Mother's counsel argued, however, that Father had not done enough to be elevated to presumed father status, since he had not acknowledged the minors when they were born and he had not provided for them financially.
The court expressed concern that Father had not come forward earlier in the "four years" of the dependency proceeding. The child welfare worker then advised the court that Father had no idea of the family's challenges, and once he was given this information, he immediately wanted to become involved and remained in very close communication with the child welfare worker.
After a lunch recess, the court reiterated its concern that the "father has not actively been involved in this case in four years." Counsel for the Agency informed the court that the Agency had failed to send some notices of the hearings to Father's correct address, due to an "address glitch." Specifically, counsel represented: "[A]pparently the father has not received all the notices that he was supposed to because of an address glitch. And that was the Agency's issues. So I don't know how many notices he did not receive, but that would mitigate to some extent possibly." The attorneys then offered the following explanation: "[AGENCY'S COUNSEL]: [The notices] were not sent to the correct address. They did get sent, but I believe some numbers might have been transposed. [¶] [MINORS' COUNSEL]: So the numbers were transposed. It wasn't that father moved and didn't provide the Agency with his address. If his address was 159. The way that they were generated was 195." The Agency's counsel added that there was no idea how many notices were misaddressed "without reviewing the whole file."
Taking into consideration that Father may not have received notice of every hearing, the court elevated Father to presumed father status. The court stated: "So it's clear that the [minors] think that [Father] is their father. That he has given them monies in the past. That he's been in and out of their lives for an extended period of time. That he holds them out at this point to the community as his own child, at least from the notes that were provided. That his family also sees the [minors] as their grandchildren, cousins, nieces, nephews, et cetera. That [Mother and Father] have a complicated relationship, but it has been a relationship that has lasted for an extended period of time, at least from the perspective that they've been having children together for - what did I say -13 years when I did the math? Actually 21 down to 13 so eight years. So those factors are such that the Court will elevate the father to presumed." The court made clear, however, that it would not have elevated Father to presumed father status without the information by the Agency's counsel and minors' counsel that the Agency had failed to notify Father of some of the hearings. This appeal followed.
II. DISCUSSION
Presumed father status is governed by Family Code section 7611. (In re Alexander P. (2016) 4 Cal.App.5th 475, 484.) Where, as here, "the child's biological mother and the potential presumed parent were not married or did not attempt to marry around the time of the child's birth, presumed parent status must be demonstrated through [Family Code] section 7611, subdivision (d), which requires, 'The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.' " (In re Alexander P., 4 Cal.App.5th at p. 485.) In general terms, the requirements of subdivision (d) are intended to describe a person who has established a parent-child or "familial" relationship with the child. (Jason P. v. Danielle S. (2014) 226 Cal.App.4th 167, 178.) To be elevated to a presumed parent, the parent must promptly come forward and demonstrate " 'a full commitment to his paternal responsibilities—emotional, financial, and otherwise.' " (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.) We generally review the court's order for substantial evidence. (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 780.)
1. Substantial Evidence
Substantial evidence supports the conclusion that, in consideration of Father's circumstances, Father received the minors into his home and openly held them out as his own children. When he learned that Mother was pregnant with K.K. and Z.R., he told his family and others about them; after K.K. was born, he lived with Mother and K.K. periodically; despite incarceration and drug problems, he visited both minors often; the minors spent summers with him in his home for years; both minors recognized him as their "dad;" he provided financial support when the minors asked and for their birthdays; he expressed his willingness to take custody of the minors; he expressed parental concern about the minors' educational and emotional training; and he displayed parental concern in imposing rules, boundaries, and structure when they visited him in a home that the child welfare worker found to be orderly, clean, and safe. It was not unreasonable to conclude that, to the extent of his abilities and in light of his situation, he promptly came forward and displayed a commitment to his paternal responsibilities.
2. No Objectively Inaccurate Assumption
Mother does not dispute there was substantial evidence to support a finding of presumed father status. Instead, she argues that the evidence was nonetheless insufficient in this case, because the court accepted the proposition that Father may not have received notice of all the hearings, and thus relied on "an objectively inaccurate assumption that [Father] may have been unaware of the minors' four-year dependency case" in making its ruling. Because the court engaged in this faulty assumption, K.K. argues, the court failed to exercise its discretion, and its failure to exercise its discretion constitutes a reversible abuse of discretion. (Citing, e.g., Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125.)
Mother contends the court's conclusion that Father lacked notice of the hearings is "objectively inaccurate" because the proofs of service attached to the Agency reports set forth Father's correct address. She also claims that if there was an address glitch as described by the minors' counsel—the numbers in the address being transposed—the notices would have gone to an invalid address, according to documents for which she requests judicial notice.
Mother requested this court to take judicial notice of certain documents, which purportedly show that the address listed in the Agency's reports for Father was valid, and the transposition of the numbers in his address would not have yielded a valid address. Because the documents were not presented to the trial court and they have not been certified, authenticated, or otherwise adequately presented to the court for judicial notice, we deny Mother's request. As discussed in the opinion, however, even if Mother were correct that the documents showed the transposition of the address numbers would have yielded an invalid address, Mother would not be entitled to a reversal of the order.
Mother's argument is unpersuasive. First, the fact that Father's correct address is listed in some of the Agency reports and proofs of service does not show that the notices were actually sent to that correct address. To the contrary, the Agency's counsel represented that Father had not received all the notices due to an "address glitch," and it appears from the record that the notices were actually not sent to the correct address listed on the proofs of service, but to an address in which the numbers had been transposed.
Second, Mother's contention that the transposition of the numbers in Father's address would have led the notices to be sent to an invalid address is immaterial: the attempted delivery of notices to an invalid address does not mean they were ever delivered to Father. In short, Mother fails to show the court's conclusion—that Father failed to receive notice of some hearings—was an "objectively inaccurate assumption."
In her reply brief, K.K. concedes (with some reservations) that she cannot conclusively disprove the Agency's claim that an address glitch caused notices to be misdirected. But she argues that, even if Father had not received any of the formal notices of the dependency proceedings, "the record shows that he was well aware of the proceedings and his children's precarious circumstances."
It is true that Father was aware of the dependency proceedings, and it appears that Father's attorney received notice of the hearings and appeared on Father's behalf at most of them. The child welfare worker stated, however, that Father was not initially aware of the true nature of the challenges the family was facing, and when he did become aware of it, he immediately wanted to become involved and remained in close contact with the Agency. Moreover, whether or not Father had actual or constructive notice of the hearings and could have appeared at more of them, the extent of his attendance at the hearings is only one of many considerations in deciding his suitability for presumed father status.
In the final analysis, the court did not rely on an "objectively inaccurate assumption," but took into consideration the totality of the evidence presented, the witnesses who testified, and the representations—essentially, offers of proof—made to the court by counsel for the Agency and counsel for the minors. Mother fails to establish that the court's order must be reversed.
III. DISPOSITION
The order is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.