Opinion
B200828
4-25-2008
In re ADRIAN C., a Person Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RUDY C., Defendant and Appellant
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Rudy C. appeals from an order denying him custody of his son, Adrian C. (born in 2001). Rudy contends the dependency court erred by not finding him to be a presumed father entitled to custody pursuant to Welfare and Institutions Code section 361.2. We disagree and affirm.
All undesignated code section references are to the Welfare and Institutions Code.
BACKGROUND
On April 21, 2007, Adrian was riding in a car driven by his mother, Irene G., who is not a party to this appeal. Irene, who was driving while drunk, lost control of her car, which hit other vehicles and rolled over. Adrian sustained injuries. The Los Angeles County Department of Children and Family Services (DCFS) placed Adrian and his two older half-sisters, Vanessa (15) and Celeste (12), who are not Rudys children and are not involved in this appeal, in a foster home. On April 25, 2007, DCFS filed a section 300 petition with various counts based upon the drunk driving incident as well as allegations that Irene had disciplined Celeste with a belt, which had brought Irene to DCFSs attention in February 2007.
Rudy did not attend the detention hearing on April 25, 2007, but Irene gave the court his address and stated that "he doesnt have anything to do with" Adrian. The court found Rudy to be Adrians declared father and ordered DCFS to locate Rudy and send him the standard statement of paternity form. At the hearing, Adrian raised his hand repeatedly until the court asked him whether he had a question. Adrian stated, "About my dad. [¶] . . . . What he done. [¶] . . . . I just want to tell you what he does every time." The court told Adrian to discuss the matter with his counsel, who could then inform DCFS. When the court asked Adrian whether he wanted visits with Rudy, he responded affirmatively. The court ordered weekly monitored visits for both Irene and Rudy. Vanessa stated that she provided day care for Adrian when Irene was working and did not want to be separated from him. The court expressed its intent to keep all the children together if possible and left them all in the care of their foster mother pending a further order.
On May 16, 2007, DCFS filed an amended petition adding a count alleging that Rudy had failed to provide Adrian with the necessities of life, including food, shelter, and clothing. In reports filed on the same date, DCFS noted that all three children, in interviews, stated that Rudy did little or nothing to provide Irene with money or supplies. Vanessa reported that when Irene took Adrian to visit Rudy, Rudy would leave Adrian with the paternal grandparents while Rudy went out with women. Celeste said that Irene stopped visits between Rudy and Adrian after one incident during which Rudy cursed aloud and hit his own mother. Adrian stated that when he visited Rudy, the paternal grandparents, not Rudy, took care of him; he had seen Rudy slap the paternal grandmother in the face during an argument; and Rudy wanted to shoot and kill Irene. Irene reported that she and Rudy never had lived together and broke up their relationship in 2005, Rudy had always lived with his parents, he did not help with Adrian, and she only recently started to receive child support from Rudy. Rudy stated that Adrian lived with him for nearly eight months while Irene was attending school, during which period Irene only saw Adrian on weekends. He also claimed to have taken Irene to Wal-Mart to purchase Adrians school clothes. DCFS recommended reunification services for Irene, Rudy, and Vanessa and Celestes father.
On May 16, 2007, the court held a detention/jurisdiction/disposition hearing, which Rudy attended. The court appointed counsel for Rudy and granted him twice-weekly monitored visits with Adrian. The court found the childrens detention appropriate but continued the jurisdictional and dispositional determinations for a contested hearing.
On June 20, at the continued hearing, Irene submitted on the petitions allegations. Rudy denied the allegation that he had failed to provide for Adrian. He testified that he and Irene had been in an on-again, off-again relationship for seven or eight years. Through the years, he had given Irene cash and purchased clothing, groceries, and medical necessities to help support Adrian, though he did not provide this support during the periods when his relationship with Irene soured. Although he never lived with Irene consistently, he lived with the family for eight or nine months from late 2003 to 2004, and he visited regularly when Irene allowed it. Rudy requested custody of Adrian and stated that he worked full time as a union carpenter, lived in a three-bedroom, two-bath home with his parents, and had the means to care for Adrian. Irene admitted that Rudy had provided for Adrian for two years after his birth but claimed he had done little thereafter. She stated that she had concerns about Adrian being with Rudy at Rudys parents home, because Rudy had a bad temper and was sometimes verbally abusive toward his parents. She said that she had no concerns about the paternal grandparents themselves, and that they, not Rudy, took care of Adrian when he visited their home.
The court found that DCFS had not met its burden to show that Rudy had failed to provide Adrian with the necessities of life. The court struck the only petition count concerning Rudy. The court then turned to the disposition. Regarding Rudy, the court observed, "Under [section] 361.2, a legal father can actually ask for custody if hes nonoffending, ready, willing and able to provide for his child, as part and parcel of holding himself out and receiving the child openly in his home. That is one of the ways you become presumed. [¶] In this particular case it appears that the father has lived with his parents, that the child has visited with the parents, and he has never moved for presumed father status. So he really is not an available father under 361.2. Even if the court were to find that based on the fathers testimony today he has held himself out as the childs father, which he did, and receive[d] the child openly in his home, which he has since he resides with his parents, and I push this and find him a presumed father, which he never was before. [¶] Even so the court finds by clear and convincing evidence return would create a substantial risk of danger to the physical, emotional well-being of the child." The court considered the evidence regarding Adrians relationship with Rudy and concluded that although Irene shared some of the blame by turning her children against the various fathers, "[I]t appears the relationship between [Adrian] and [Rudy] is not a good one, and that the relationship between [Adrian] and the grandparents is the bonded relationship." The court noted that it intended to provide Rudy with reunification services and continue his unmonitored visitation with Adrian to give Rudy the opportunity to "show this court what a father can be." The court ordered Rudy to attend a parenting class and joint counseling with Adrian and granted him twice-weekly, hour-long unmonitored visits. The court also granted the paternal grandparents one weekend visit per month with Adrian. Rudy timely appealed from the courts orders, "including, but not limited to, denial of Presumed Father status . . . and custody of my son."
DISCUSSION
Rudy contends the dependency court erred prejudicially by not finding him to be Adrians presumed father. Because we conclude that he has not shown prejudice, we disagree.
"In California, the `statutes governing dependency proceedings differentiate the rights of presumed, natural, and alleged fathers. [Citation.]" (In re Mary G. (2007) 151 Cal.App.4th 184, 197.) "`Presumed father status ranks highest. Only a "statutorily presumed father" is entitled to reunification services under . . . section 361.5, subdivision (a) and custody of his child under . . . section 361.2. [Citation.]" (Ibid.) "Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan." (In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) Section 361.2, subdivision (a), provides that when a court orders removal of a child from a custodial parent in a dependency proceeding, "the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child."
Although the court did state that Rudy was not a presumed father, it nonetheless declared that even if he was a presumed father, the result would be the same because placement with Rudy would, by clear and convincing evidence, be detrimental to Adrian. The court thus applied the standard applicable to presumed fathers when it denied Rudy custody. Further, as DCFS points out, in this proceeding the court afforded Rudy all the rights of a presumed father, and Rudy has not shown otherwise. Accordingly, he has not shown prejudice.
DISPOSITION
The order is affirmed.
We Concur:
VOGEL, Acting P. J.
JACKSON, J.