Opinion
A157684
03-04-2020
In re M.M., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. TAMMY M., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. JV170264, JV170265)
Tammy M. (mother) appeals from a juvenile court order granting Robert A.'s petition to elevate him to presumed father of M.M (minor). Mother contends the order must be reversed because Robert does not meet any legal definition of a presumed parent. We conclude substantial evidence supports the juvenile court's finding that Robert met his burden to show he was a presumed parent of minor. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children, R.A. (born in 2008), S.M. (born in 2014), and minor (born in 2017). Robert is the biological father of the oldest child, R.A. In the course of this dependency case, Robert learned he is also the biological father of S.M., but he is not the biological father of minor. At the start of this case, Robert lived with mother and the three children.
Dependency Petitions
On December 5, 2017, the Humboldt County Department of Health and Human Services (Department) filed petitions for all three of mother's children. It was alleged that minor (six months old at the time) was at substantial risk of harm or illness as a result of mother's inability or unwillingness to provide him with adequate nutrition and as the result of mother's mental health issues (Welf. & Inst. Code, § 300, subd. (b)) and that minor's half-siblings R.A. and S.M. were also at risk due to the same issues (id., subd. (j)). Robert is Recognized as the Presumed Father of R.A.
Further undesignated statutory references in the factual and procedural background are to the Welfare and Institutions Code.
Although the dependency proceedings involved all three of mother's children, our summary is generally limited to facts related to either Robert or minor because mother appeals only the court's order elevating Robert to presumed father of minor.
At a first appearance in January 2018, the juvenile court recognized Robert as the presumed father of R.A. at his request and without objection.
Jurisdiction Report and Hearing
The jurisdiction report described the incidents that led to the petitions.
Early in October 2017, a reporting party expressed concern that mother's mental instability might be causing minor not to gain weight and that minor could "soon be diagnosed as failure to thrive." A social worker conducted two home visits that month.
Later in October, mother was placed on a section 5150 hold and taken to a psychiatric facility and, as a result, S.M. and minor were taken into protective custody. The same day the children were taken into custody, the social worker received a call from Robert, "who stated that he was the father of S[.M.] and [minor]." When asked about the status of his paternity, however, Robert said he was not sure but he lived with mother.
Mother was released from the psychiatric facility, and the Department held a Family Team Meeting the next day. Mother, Robert, mother's father, Robert's mother, and other family and friends attended.
In January 2018, Robert told the social worker that he was R.A.'s biological father, and he was invested in the welfare of S.M. and minor and hoped to always be a part of their lives.
At a hearing on jurisdiction on January 31, 2018, the juvenile court found minor to be a child described by section 300.
Disposition Report and Hearing
The disposition report stated that mother reported minor was the product of rape; she identified Jeremy M. as his father.
The Department suggested Robert was a good influence in the family, noting, "the presence of the oldest child's father, [Robert], in the home was an important consideration in the decision to leave the children in the care of the mother." Under the heading "family strengths," it was reported that Robert was "a support to the mother, as he provides housing and parenting support." However, under "assessment/ evaluation," the Department concluded mother had not addressed her mental health issues and Robert "has not demonstrated his ability to influence the mother or advocate for his son," R.A.
At the dispositional hearing on March 8, 2018, the juvenile court declared minor a dependent of the court, found mother's progress minimal, and ordered family maintenance services for mother.
Minor's alleged father, Jeremy M., was denied reunification services.
Addendum Reports and Interim Hearings
The Department filed an addendum report in June 2018 for all three of mother's children detailing concerns about mother's mental stability. The report concluded that the Department "feels that because of the above concerns the children would be put a[t] significant risk of harm if [Robert] was not in the home to help support the mother and parent the children or if the case was closed."
In another addendum report filed in July 2018, it was noted that Robert "being in the home is the biggest factor that the attorney for the [children] deems necessary to ensure the children are safe in the home." The Department's understanding was that Robert "provides a home for the family to live in, lives in the same household and helps to pay bills."
Robert appeared with his attorney at hearings in June, July, and September 2018, as the presumed father of R.A. Robert Requests Paternity Testing and Presumed Father Status as to S.M. and Then Requests Presumed Father Status as to Minor
On September 20, 2018, Robert filed a section 388 request to change court order, requesting (1) paternity testing for S.M., and (2) if testing showed he was the biological father, a finding and order of presumed father status "because the child has lived with [Robert] since birth and [Robert] has treated the child as his own." Robert averred, "he may be the father of [S.M.] because he had a sexual relationship with the mother when [S.M.] was conceived. He attended the child's birth, however the mother did not allow the father to participate in the child's naming or any other decisions at birth."
Robert also filed a Form JV-505 Statement Regarding Parentage for S.M., consenting to blood or DNA testing to determine whether he was S.M.'s biological father. The court granted the request for a DNA test.
On November 1, 2018, Robert filed an amended Form JV-505 regarding S.M., requesting a judgment of parentage. Robert stated that S.M. lived with him from birth to October 2018; that he told his mother, brother, friends, and landlord that S.M. was his child; that he had "taken the kids to Disneyland, Humboldt County Fair, I help feed, cook, dress them, we've gone camping to High Sierra Music Festival in Quincy"; and that he paid rent and utilities for the residence where he lived with mother and S.M., and his own mother "provided thousands of dollars for the family and kids for furniture, clothing, toys, appliances, anything they need at the mother's request." Attached was a copy of DNA results that showed a 99.99 percent probability that he was S.M.'s biological father.
Robert's Section 388 Petition as to Minor
Also on November 1, 2018, Robert filed (1) a section 388 request to change court order, requesting a finding and order of presumed father status as to minor, and (2) a Form JV-505 on parentage. Robert stated he "helped raise [minor] and treated him as his own."
Robert further explained that he was requesting presumed father status as to minor because of changes in "family dynamics." This referred to mother's stated intention to take all three children to southern California to move in with her parents. In his section 388 motion regarding minor, Robert averred, "Given the changes in the family dynamics, the concerns for the safety of all the three children involved in this matter if allowed to move out of the county with the mother, it is important that [Robert] act to protect all three children."
On September 21, 2018, mother filed a motion to transfer the dependency cases for R.A., S.M., and minor to San Bernardino County, where the maternal grandparents lived. In support of her motion, mother stated she and her three children lived in Robert's home, but she and Robert were "not an intact couple and now wish to live separately and apart." Subsequently, at a status review hearing on December 19, 2018, mother withdrew her motion to transfer. However, at a hearing on February 14, 2019, mother indicated again that she wanted to move out of the area.
In his Form JV-505, Robert stated that minor had lived with him from minor's birth to October 2018. As he had with S.M., Robert told his family, friends, and landlord that minor was his child, he took minor on vacations and took care of minor at home, he paid rent and utilities, and his mother paid for family household needs.
Additional Reports
A status review report showed that mother told a social worker in January 2018 that Robert "ha[d] acted as the . . . father [to S.M. and minor], but he is not their biological father."
Another report confirmed that genetic test results indicated 99 percent confidence that Robert was the biological father of S.M.
Contested Hearing
A contested hearing on Robert's section 388 requests for presumed father status as to S.M. and minor was set for June 17, 2019.
Court-ordered genetic testing showed that Robert was excluded as the biological father of minor. Mother objected to Robert being named presumed father of either S.M. or minor.
The Department took the position that Robert should be elevated to presumed father of S.M. but he should not be granted presumed father status as to minor. The Department had come to believe mother and Robert had a "co-dependent and toxic relationship" and, as result, it was not in minor's best interest for Robert to be recognized as a presumed father. It also noted that Robert had not consistently visited his other children (R.A. and S.M.) and that he stated he did not push for additional contact to avoid upsetting mother. The Department concluded these facts did "not reflect positively as to [Robert] and his ability to parent."
The attorney for mother's three children agreed with the Department's position.
Robert's Testimony
Robert, the only witness at the contested hearing, testified as follows. He was present at the hospital for S.M.'s birth, but mother told Robert he was not the father. Robert's mother had paid close to $50,000 in rent and utilities for the house S.M. had lived in for the previous three years.
Robert was also present at minor's birth. Although he was not minor's biological father, Robert provided for mother when she was pregnant with minor, and when minor left the hospital, he lived in Robert's house. Robert and mother were living together at the time minor was conceived, but they were "not a couple." He and mother have broken up "at least three dozen times."
Robert described his current relationship with minor, "I feel like we have a warm, nurturing relationship. He's great. He's a great child. He deserves to have a father."
The children's attorney asked whether Robert remembered telling a social worker at the start of the dependency cases that he wasn't minor's father. Robert responded, "I've been acting as his father since he was born. I might have been talking about biologically speaking who his actual father is."
Robert told his family about minor's birth, but he did not say he was minor's father. He testified that, at the time the social worker first started making home visits (in October 2017), he and mother "were not in a romantic relationship, but we were—we had agreed to raise the children together in my home." When mother was on a section 5150 hold and S.M. and minor were in protective custody, Robert called the Department. He testified, "I said [to the Department] I wanted to get my children back and they gave the children back to me the next morning only on the stipulation that I'd remain in the home with the children." He stayed at home with the children most of the time, but there were "a few times where [mother] would raise her voice and argue with me, and instead of having that happen in front of the children, I would walk away." Sometimes, he spent a night away from home, but he was never away for two nights in a row.
Mother's attorney asked Robert if he ever denied he was minor's father. He responded, "Biologically, yes. I know that he's not my son biologically."
Although the Department did not support presumed status as to minor, its attorney nonetheless argued, "[E]very child deserves to know who their parents are. . . . [Robert]—albeit maybe not perfect in his role as a dad, he's absolutely been there from the beginning for [S.M.] and [minor], for that matter, and has tried to remain in the lives of all of the children throughout the life of this case . . . ."
The children's attorney stated that, while Robert "supported the family for various reasons," he has "not held himself out as" minor's father, and "It's clear that he has not acted in the capacity as a father for [minor]."
Mother's attorney argued it was not in minor's best interest to find presumed father status because of "the level of toxicity in this family." She also suggested that Robert was seeking presumed father status to antagonize mother.
The Court Grants Robert's Requests for Presumed Father Status
The juvenile court took the matter under submission. On June 20, 2019, the court granted Robert's section 388 requests, stating it "believe[s] that there is evidence based on what's presented" to elevate Robert to presumed father status of both S.M. and minor. The court noted that it was not in the minor's best interest to be treated differently from his siblings and that it was in all the children's interest to be financially supported by Robert.
DISCUSSION
Family Code section 7611 "sets forth several rebuttable presumptions of" parentage. (W.S. v. S.T. (2018) 20 Cal.App.5th 132, 143.) At issue in this case is subdivision (d) of section 7611 (§ 7611(d)), which provides that a "person is presumed to be the natural parent of a child" if the person (1) "receives the child into their home," and (2) "openly holds out the child as their natural child."
On appeal, the Department declines to take a position on the merits of mother's appeal and, instead, "submit[s] on its arguments at the trial level in which it opposed Robert A.'s request for presumed father status as to" minor.
"When determining whether the person has met the statutory requirements of receiving the child into his or her home and openly holding the child out as his or her own, the court may consider a wide variety of factors, including the person's provision of physical and/or financial support for the child, efforts to place the person's name on the birth certificate, efforts to seek legal custody, and the breadth and unequivocal nature of the person's acknowledgement of the child as his or her own. [Citation.] No single factor is determinative; rather, the court may consider all the circumstances when deciding whether the person demonstrated a parental relationship by holding out the child as his or her own and assuming responsibility for the child by receiving the child into his or her home." (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 774.)
"[W]e review a trial court's finding of presumed parent status under the substantial evidence standard. [Citations.] We view the evidence in the light most favorable to the ruling, giving it the benefit of every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] We defer to the trial court's credibility resolutions and do not reweigh the evidence. [Citation.] If there is substantial evidence to support the ruling, it will not be disturbed on appeal even if the record can also support a different ruling." (R.M. v. T.A., supra, 233 Cal.App.4th at p. 780.) "To the extent we are called upon to review the trial court's legal interpretation of the 'receiving' and 'holding out' requirements set forth in section 7611(d), we shall exercise our independent legal judgment." (S.Y. v. S.B. (2011) 201 Cal.App.4th 1023, 1031 (S.Y.).)
On appeal, mother does not dispute that Robert met the "receiving" requirement. The evidence is uncontradicted that minor lived in Robert's home from birth till well after this dependency case was initiated.
Mother contends only that Robert failed to meet the second "holding out" requirement. She argues a "natural father" means a biological father, and Robert cannot show he openly held minor out as his natural child under section 7611(d) because he never said he was minor's biological father. But cases are clear that a person may be a presumed parent under section 7611(d), even if the person does not claim to be a biological parent. (E.g., In re Nicholas H. (2002) 28 Cal.4th 56, 63 ["a man does not lose his status as a presumed father by admitting he is not the biological father"]; Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 114, 120, 125 [a woman openly held twins out as her natural children for purposes of section 7611(d), even though her same-sex partner was the twins' biological mother and the woman gave birth to another child four months before the twins were born]; S.Y., supra, 201 Cal.App.4th at pp. 1028-1029, 1034-1035 [the trial court did not err in finding a woman openly held two children out as her natural children even though the woman referred to herself as the children's "godparent"].)
S.Y., supra, 201 Cal.App.4th 1023, is instructive. S.Y. and S.B. were in a committed relationship for many years. (Id. at p. 1026.) S.B., who had always dreamed of having children, began trying to have a child through artificial insemination. S.Y. told S.B. she supported her in this endeavor and "would coparent the child with her." (Id. at p. 1027.) After her efforts to conceive were unsuccessful, S.B. instead adopted a baby in 1999. S.Y. went with S.B. to attend the birth and then stayed with S.B. and the baby most nights and every weekend, assisting in the baby's care as much as S.B. would allow. At one point, S.Y. and S.B. broke up and then reconciled two and a half years later. (Ibid.) During the temporary breakup, S.B. adopted another child in 2004. When S.Y. and S.B. reconciled in 2005, S.Y. again spent most nights at S.B.'s and stopped by other nights to spend time with the children. S.Y. set up college saving accounts for both children and named them beneficiaries on her life insurance policy and mutual funds. She displayed photos of the children at work and took them and S.B. to family events. She referred to herself as the children's "godparent," but her supervisor at work "understood 'she was in her role as the parent.' " (Id. at pp. 1028-1029.)
After S.Y. and S.B. ended their relationship in 2009, S.B. told S.Y. she would not allow her any contact with the children. S.Y. then sought presumed parent status of the children. (S.Y., supra, 201 Cal.App.4th at pp. 1026, 1030.) The trial court declared S.Y. to be a second, same-sex parent of the two children under section 7611(d). (Id. at p. 1025.) S.B. appealed, arguing (among other things) that the trial court erred in finding S.Y. " 'openly held the children out as her own natural children,' as required under section 7611(d)." (Ibid.)
The Court of Appeal rejected S.B.'s argument. (S.Y., supra, 201 Cal.App.4th at p. 1034.) As substantial evidence that S.Y. met the "holding out" requirement, the court cited the facts we have already described, plus evidence that S.Y. went on numerous family vacations with S.B. and the children, she attended the children's back-to-school nights and attended their games, she took S.B. and the children to visit her family in Texas and her parents considered the children to be their grandchildren, and S.B. and the children gave S.Y. Mother's Day cards. (Id. at pp. 1034-1035.)
The court concluded, "In sum, the trial court did not err in finding that S.Y. met her burden of establishing she received the children into her home and held them out as her natural children. Our conclusion is consistent with the purpose behind the presumed parent designation, which 'is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.' [Citation.] '[T]he premise behind the category of presumed father is that an individual who has demonstrated a commitment to the child and the child's welfare—regardless of whether he is biologically the father—is entitled to the elevated status of presumed fatherhood.' [Citation.] Here, there is no doubt that S.Y. entered into a familial relationship with S.B. and the children and demonstrated a commitment to the children over the course of their lives. Thus, recognizing S.Y. as a parent furthers the purpose of the statute." (S.Y., supra, 201 Cal.App.4th at pp. 1035-1036.)
The facts of S.Y. demonstrate that a person need not tell everyone she is the biological parent of a child to meet the "holding out" requirement of section 7611(d). Rather, the broader question is whether the person has demonstrated a commitment to the child and the child's welfare. Where the evidence showed S.Y. "entered into a familial relationship with S.B. and the children and demonstrated a commitment to the children over the course of their lives," she was properly recognized as a presumed parent under section 7611(d), even though she held herself out as the children's godparent, not as their biological mother. (S.Y., supra, 201 Cal.App.4th at pp. 1028-1029, 1035-1036.)
Here, Robert testified he has "been acting as [minor's] father since he was born." Mother confirmed to a social worker that Robert "acts as the . . . father" to minor. Robert further testified that he and mother "had agreed to raise the children together in my home." Although Robert always understood he was not minor's biological father, when minor and S.M. were placed in protective custody in October 2017, Robert called the Department and said he wanted "my children back." Robert told his mother, brother, friends, and his landlord that minor was his child. He took minor on trips and helped take care of him day-to-day. He paid rent and utilities for the residence he shared with mother, minor, and minor's two half-siblings. The evidence in the record was sufficient for the juvenile court to find Robert entered into a familial relationship with mother and minor and demonstrated a commitment to minor over the course of the child's life such that Robert met the requirements of section 7611(d). We will not disturb the order elevating Robert to presumed father of minor.
DISPOSITION
The order granting Robert's section 388 petition to elevate him to presumed father of minor is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.