Opinion
F080956
06-05-2020
DANNY P., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Danny P., in pro. per., for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVDP-19-000214)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ. Ann Q. Ameral, Judge. Danny P., in pro. per., for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Real Party in Interest.
Before Smith, Acting P.J., Meehan, J. and DeSantos, J.
-ooOoo-
Danny P. (father), biological father of now nine-month-old C., seeks extraordinary writ review from the juvenile court's dispositional orders denying him reunification services under Welfare and Institutions Code section 361.5, subdivision (a) and setting a section 366.26 hearing on July 7, 2020. Kaitlyn B., C.'s mother, (mother) was also denied reunification services but did not file a writ petition. Father contends inaction on the part of the Stanislaus County Community Services Agency (agency) caused him to appear noncompliant. He seeks custody of his son and the opportunity to prove he can be a good father. We deny the petition.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL SUMMARY
In August 2019, newborn C. and mother tested positive for amphetamines during his delivery. Mother also tested positive for opiates. C. was admitted to the neonatal intensive care unit to monitor him for withdrawal and respiratory problems. Mother reported she used methamphetamine throughout her pregnancy except in May and part of June 2019 when she was incarcerated. She was released from custody on June 19 and used methamphetamine 13 hours prior to delivery. She had four other children who had been removed from her custody and for whom services had been terminated or denied. The children had since been freed for adoption. She identified two possible fathers of her baby, her husband, Nicholas B., and father, who was incarcerated. She said Nicholas also used methamphetamine. They were homeless but were living with a friend. She intended to raise the baby and live with an aunt.
The investigating social worker visited the home where mother claimed to live. She was informed mother and Nicholas no longer lived there and were staying in a vacant house. Nicholas could not be located.
Father denied being in a romantic relationship with mother but acknowledged his biological paternity. He was aware of mother's substance use and child welfare history. He had been homeless for approximately four years and struggled with methamphetamine use, his drug of choice, although he was clean and could not remember the last time he used the drug. He was arrested for drug possession and sales in 2016 but was currently incarcerated on a domestic violence conviction with his ex-girlfriend. He was not interested in a relationship with mother, but wanted to be part of the baby's life.
The agency placed a protective hold on C. and filed a dependency petition on his behalf, alleging mother's drug abuse placed C. at risk of harm and Nicholas and father were aware of her drug use and failed to protect C. It further alleged the three parents were homeless and unable to provide C. adequate food, clothing and shelter and had extensive criminal histories, including drug related and battery charges. (§ 300, subd. (b)(1).) The petition further alleged the parents left C. without support because mother and Nicholas were homeless and father was incarcerated.
Father was the only parent who appeared at the detention hearing on September 9, 2019. The juvenile court appointed him counsel, ordered C. detained and ordered father to undergo paternity testing. The agency provided father referrals for services and suggested he participate in any services available in jail. The agency placed C. in foster care upon his discharge from the hospital.
In its jurisdictional/dispositional report, the agency reported it had not had contact with mother and Nicholas and their whereabouts were unknown. The agency attempted unsuccessfully to locate them at the vacant house. The agency recommended the juvenile court deny mother reunification services because of her untreated substance abuse (§ 361.5, subd. (b)(10), (11) & (13)) and deny father and Nicholas services because they were alleged fathers (§ 361.5, subd. (a)).
On October 15, 2019, the juvenile court sustained the allegations, adjudged C. a dependent child and continued the matter to November 22, 2019, to allow for receipt of father's paternity results. The court found Nicholas was C.'s presumed father.
On November 22, 2019, at the dispositional hearing, the juvenile court found father was C.'s biological father and, at father's request, set a contested hearing for January 10, 2020.
On January 10, 2020, mother appeared for the first time in the proceedings in custody. She informed the juvenile court Nicholas died in early December 2019. The court continued the hearing to February 3, 2020, and stated it would consider providing father reunification services if he "shows his full engagement between now and the time of the next hearing."
In an addendum report filed in January 2020, the agency informed the juvenile court C. was placed with his adopted half sister. The agency continued to recommend denial of reunification services to the parents. Father waited until January 2, 2020, to complete a substance use disorder assessment and tested positive for methamphetamine and THC at the time. He had since entered Nirvana men's residential program (Nirvana) but struggled to properly care for C. during visitation, requiring the staff to assist with feeding, burping and diapering. As a result, he never changed C.'s diapers, allowing that task to fall on the foster mother or his aunt when she accompanied him on visits. Father also fell into a pattern of putting C. in his car seat while he played on his telephone, sometimes playing loud videos or music and putting the phone in the baby's face. When he was not on his phone, he frequently fell asleep and had to be reminded to remain awake during his visits. He also asked to end visits early.
On February 3, 2020, father requested a contested dispositional hearing which was set for March 9, 2020. By the hearing, father's progress had not improved. He continued to end visits early, interact minimally with C. and fall asleep during visits. He tested positive for methamphetamine on January 2, 2020, and his case manager at Nirvana reported his recovery was faltering. He struggled to complete his writing assignments and accomplish basic life skills such as showering, washing his clothes and keeping the area around his bed clean. He made it clear he was there because the agency was "making him." He had not started parenting classes at Sierra Vista and did not show up for his intake session on December 16, 2019. The social worker made special arrangements for the Nirvana staff to transport him to parenting classes at Sierra Vista but on February 27, 2020, the date of his first parenting class, he declined to go, stating he did not need parenting instruction. He was also discharged from a domestic violence class required by probation and the agency after attending only one class.
Prior to the hearing, C.'s foster parents filed a de facto parent request. They stated C. was a joyful baby who loved his foster siblings and had a special bond with his biological sister who they adopted a year before. They wanted to make him a permanent part of their family through adoption. A hearing on their petition was set to coincide with the dispositional hearing on March 9, 2020.
On March 9, 2020, mother made an offer of proof which the juvenile court accepted that she loved her son and planned to enter inpatient substance abuse treatment when she was released from jail in April 2020. She had been sober while incarcerated and Nicholas's death made her reexamine her life. She wanted to engage in mental health services and asked the court to provide her reunification services. Even if the court denied her services, she asked the court to provide father services because she knew he was a "good dad."
Father also loved his son. He testified he discovered mother was pregnant halfway through her pregnancy; sometime around February or March 2019. He was very excited because he had never been a "dad." He bought mother food one time while she was pregnant. He did not do anything else to assist her because she had Nicholas to help her.
Father claimed January 7, 2020, as his sobriety date. He started using methamphetamine, his drug of choice, at the age of 15, approximately 22 years before. His longest period of sobriety was the nearly two months he had been in Nirvana, which he entered on January 14, 2020. He did not believe it was going well there because his counselor was "not on track." She met with him for the first time two days before the hearing and would not accept his assignments from him. She gave him an aftercare packet because he was scheduled to graduate on March 13, 2020. He did not believe he was ready to graduate because he needed more time to work on the 12 steps with his counselor. He acknowledged falling asleep during morning group meetings when he had not had his coffee, adding "We're addicts." He also acknowledged falling asleep with a cigarette in his mouth. He disputed the social worker's statement he was not participating in his recovery, pointing out that he was "there" and completed his assignments even though he had not submitted them. He denied that he was participating in treatment because the agency made him. He started parenting classes two weeks before and attended one class. If the court elevated his paternity status to presumed father, he would love, care for and support C. His uncle hired him full time to work in a restaurant. He planned to maintain his sobriety by attending meetings, going to church and relying on the support of his family. He did not have a sponsor yet.
Father's attorney argued the juvenile court should elevate his paternity status to presumed father under In re Kelsey S. and grant him reunification services. Counsel for the agency argued he did not qualify as a Kelsey S. father and failed to demonstrate it was in C.'s best interest to offer him services under section 361.5, subdivision (a).
Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).
The juvenile court exercised its dependency jurisdiction over C., ordered him removed from parental custody and denied both parents reunification services as recommended. In ruling, the court stated it could not find father "meaningfully" engaged in services. It found it was not in C.'s best interest to elevate his paternity status or offer him services. The court granted the foster parents' request for de facto parent status and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner contends the juvenile court should have placed C. in his custody because he never missed a court date or visit, completed substance abuse treatment and attained sobriety. However, only a presumed father, a status father never attained, is entitled to outright custody of a child as we now explain.
Dependency law accords different paternity rights to a man depending upon his paternity designation. Of relevance to this case are the "presumed" and "biological" father designations. The presumed father is one who satisfies any of the conditions set forth in Family Code section 7611. The presumptions do not apply to father because he never married or attempted to marry mother, executed a voluntary declaration of paternity or received C. into his home and held him out as his own. (Fam. Code, § 7611, subds. (a)-(e).) A man may also attain presumed father status under Kelsey S. if he can demonstrate that his constitutional rights to equal protection and due process were violated in his attempts to attain presumed father status. (Kelsey S., supra, 1 Cal.4th at p. 849.) The advantage of being a child's presumed father is that it entitles the father to reunification services under section 361.5, subdivision (a) and custody of his child under section 361.2. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.)
In contrast to the presumed father, a biological father is one whose biological paternity has been established, but who has not achieved presumed father status. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) The biological father is not entitled to reunification services but the juvenile court may order them for him if the court determines that the services will benefit the child. (§ 361.5, subd. (a).)
Thus, only a presumed father is entitled to custody of the child and there is no evidence father qualifies as a Kelsey S. father. In Kelsey S.., the Supreme Court held that Family Code section 7611 and the related dependency statutes violate an unwed father's 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 attaining presumed father status after he, upon learning of his paternity, promptly came forward and demonstrated a full commitment to his parental responsibilities—emotional, financial and otherwise. (Kelsey S., supra, 1 Cal.4th at p. 849.)
That is, assuming the juvenile court does not find it would be detrimental to the child's safety, protection or physical or emotional well-being. (§ 361.2, subd. (a).) --------
In determining whether a biological father is a Kelsey S. father, the juvenile court considers his conduct before and after the child's birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses according to his ability to do so, and promptly took legal action to obtain custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849.) The court also considers his willingness to assume full custody of the child. (Ibid.) If an unwed father fails to demonstrate a full commitment to his parental responsibilities, the statutes are constitutionally sufficient as applied to him. (Adoption of Alexander M. (2001) 94 Cal.App.4th 430, 439.)
Here, father fails to satisfy the Kelsey S. threshold requirement of promptly coming forward and demonstrating a full commitment to his parental responsibilities. The only assistance he offered mother during her pregnancy was to provide her one meal. He did not pay any expenses related to her pregnancy or take legal action to obtain custody of C. Although he professed love for C. and the desire to raise him and be a father to him, he did not take any affirmative action to assume full custody of him. Since father does not qualify as a presumed father under Family Code section 7611 or within the meaning of Kelsey S., he was not entitled to custody of C.
Further, although father does not challenge the juvenile court's decision to deny him reunification services, substantial evidence supports the court's finding services would not benefit C. C. was removed at birth, precluding father from establishing a bond with him. In addition, C. was very bonded to his foster family and doing well there. Further, father was very early in his recovery from a 22-year addiction with methamphetamine and was struggling even at that. Although he was soon to graduate from drug treatment and transition into aftercare, he did not believe he had sufficiently progressed in the 12-step program to be successful. Consequently, father was not in a position to assume custody of C. any time in the near future, and C. deserved the stability of a permanent placement.
We find no error on this record and affirm the juvenile court's orders denying father reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.