Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK80736, Deborah Andrews, Judge.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Appellant April M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Kim Nemoy, Deputy County Counsel for Plaintiff and Respondent.
No appearance on behalf of Defendant and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
April M., the child, appeals from a rehearing order finding that A.M. was not her presumed father. The child argues: A.M. achieved presumed father status when he executed a voluntary paternity declaration; the voluntary paternity declaration was properly executed; and, at the rehearing proceeding, Judge Deborah Andrews should have granted a continuance to permit the introduction of relevant evidence. The Department of Children and Family Services (the department) argues the child’s appeal must be dismissed. We conclude Judge Andrews’ finding A.M. is not a presumed father is appealable and was proper. Further, we conclude any error in denying the continuance motion was harmless. We therefore affirm the order that A.M. is not a presumed father.
II. PROCEDURAL HISTORY
The child was detained by the department on January 15, 2010. On January 19, 2010, the department filed a Welfare and Institutions Code section 300 petition which alleged the mother of the child was a narcotics abuser. The child had a half-sibling, A.D. A.M. was alleged to have failed to provide the necessities of life for the child. On January 21, 2010, the detention hearing was held before Retired Judge S. Patricia Spear. Judge Spear ordered the child remain detained and found that A.M. was an alleged father. On March 2, 2010, the department filed a first amended petition which contained similar allegations regarding A.M.’s failure to provide for the child.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
We limit our discussion to allegations which relate to A.M., the mother and the child.
III. RELEVANT LEGAL AND FACTUAL AND CIRCUMSTANCES
The present appeal involves issues of appealability, sufficiency of a voluntary paternity declaration and the conduct of a rehearing proceeding. We thus limit our recitation of the facts to those pertinent to the disposition of the issues posited by the parties. The initial and first amended petitions allege: the mother was a marijuana, methamphetamine and amphetamine abuser to the degree the child was endangered; the mother failed to provide for the child’s necessities of life; and A.M. failed to provide for the child’s necessities of life. The original petition contains the department’s objection to any commissioner sitting as a referee. Similar to the previously filed petitions, the detention report indicated the mother was a marijuana, methamphetamine and amphetamine user. The child was detained on January 15, 2010. At the detention hearing, the issue of A.M’s status as a father was raised. Judge Spear noted A.M., who was in prison, was not present. Judge Spear stated: “He’s not here. He appears to be an alleged father right now.”
A.M., a gang member serving an aggravated assault term, was incarcerated in Kern Valley State Prison. In an interview with the department’s investigator, he indicated his earliest possible release-date from prison was September 21, 2010. But, he was the subject of an immigration hold and did not know whether he would be deported to El Salvador – his birthplace. A.M. and the mother were never married nor did they ever live together. A.M. learned of the mother’s pregnancy with the child when she was three to four months pregnant and he was incarcerated. A.M. saw the child only once during a prison visit and never lived with her. A.M. admitted to the investigator that he never provided the necessities of life to the child including food, clothing, shelter and medical care.
On March 10, 2010, A.M. appeared for the first time in juvenile court. A.M.’s counsel, Martin Lee, stated: “The parents have signed a declaration of paternity form that was sent to the Department of Child Services. I’ll send a copy of the form that will be sent there. I believe as soon as the form is signed by both parents, effectively it will grant him paternity under the Family... Code and he can be a presumed father.” The department’s lawyer objected to the request that A.M. be found to be a presumed father. Although the form referred to by A.M.’s counsel was not produced at the hearing, Retired Commissioner Albert Garcia, sitting as a referee, found A.M. was a presumed father. The adjudication and dispositional hearings were held on March 16, 2010, and Commissioner Garcia declared the child to be a dependent of the juvenile court. Reunification services were ordered for the mother and A.M.
On March 19, 2010, the department filed a rehearing application pursuant to Welfare and Institutions Code section 252. By this time, the department’s counsel had secured the voluntary paternity declaration. The department’s rehearing application alleged: the voluntary paternity declaration was executed by both the mother and A.M. on March 10, 2010, nearly two and one-half years after the child was born; the voluntary paternity declaration was witnessed by the mother’s court appointed lawyer, Aaruni Thakur; and there was no proof the voluntary paternity declaration was served on the Department of Child Support Services. The rehearing petition relied on Family Code section sections 7540, 7571 and 7611.
On April 8, 2010, the department’s rehearing application was granted. The hearing on the department’s rehearing petition was held on May 27, 2010. A.M. was represented by Mr. Lee. At the beginning of the May 27, 2010 hearing, Judge Andrews stated, “[W]e’re here for the purpose of rehearing the issue of [the] father’s status, whether he’s alleged or presumed.”
Judge Andrews issued the following tentative ruling: the voluntary paternity declaration was not properly witnessed by court staff; there was no competent evidence the witness to the execution of the voluntary paternity declaration, Mr. Thakur, was legally authorized to be a witness; and there was no evidence that as of March 10, 2010 (i.e., the date Commissioner Garcia ruled A.M. was a presumed father), the voluntary paternity declaration had been filed with the Department of Child Support Services.
Mr. Lee asserted that the voluntary paternity declaration had been served on the Department of Child Support Services. Specifically, he said: “[I]t’s true that at the time the court initially made that ruling, the document had yet to be filed with the Department of Child Support Services; however, I can report to the court, as an officer of the court, that the document was, the same day after the hearing, sent to the Department of Child Support Services for filing, and that was many weeks ago at this point in time if not months ago at this time. [¶]... [W]e could ask the Department of Child Support Services to confirm whether that has indeed been filed.”
When Judge Andrews stated that there was no evidence to support Mr. Lee’s oral representations, he responded: “I would be making a request that the court continue this matter, that we wait for the providing of the declaration from Mr. Thakur that he indeed has received that training and that he would qualify... with the approval of the Department of Child Support Services, and that we could ask county counsel to request a confirmation from the Department of Child Support Services to find out whether that was, as opposed to leaving the case in a state where we have a... father and a mother who are jumping up and down having signed forms declaring that he’s a presumed father....” Judge Andrews responded: “Procedurally I don’t think it would be part of a rehearing; I think it would be a new motion brought by [the] father once everything has been established because the rehearing goes back over the evidence that was presented to determine if a different outcome should result. And that’s what this court has done in addition to giving a strong signal of what the court believes is lacking.”
Over an objection by the child’s counsel, Judge Andrews issued an order indicating A.M. was not a presumed father of the child. The father filed a notice of appeal from Judge Andrews’ post-dispositional order denying his request to be treated as a presumed father.
IV. DISCUSSION
A. Appealability
The department argues the order finding A.M. was not a presumed father made at the conclusion of the rehearing proceedings before Judge Andrews is not appealable. The finding that A.M. is not a presumed father acts to deny him the right to reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-450; see In re Jesusa V. (2004) 32 Cal.4th 588, 610.) Commissioner Garcia entered the dispositional order which provided A.M., as a presumed father, with reunification services on March 16, 2010. That order was appealable. (§ 395, subd. (a); In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250.)
Judge Andrews’ presumed father determination, made after judgment, is likewise appealable. “Section 395 provides in pertinent part: “A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as an order after judgment... .” [Fn. omitted.] In a section 300 proceeding, the order entered at the dispositional hearing is a final judgment, and any order entered after the dispositional hearing (with one exception not pertinent here) is appealable as an order after judgment. [Citations.]’” (In re Melvin A., supra, 82 Cal.App.4th at p. 1250; orig. italics; see also Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1153 [“[P]ursuant to section 395, the juvenile court’s dispositional and following orders are directly appealable, with the exception of an order setting a selection and implementation hearing under section 366.26, which is reviewable only by petition for extraordinary writ”].) The rehearing order is a “subsequent order” which directly affects the dispositional order and A.M.’s rights to reunification services within the meaning of section 395. Thus, it is an appealable order.
Relying on Melinda K. v. Superior Court, supra, 116 Cal.App.4th at page 1154, the department argues the presumed father order entered as part of the rehearing process was not appealable. In Melinda K., a litigant attempted to appeal from a “finding” made at a six-month review hearing that reasonable reunification services had been provided. (Id. at p. 1150.) Melinda K held that a dependency litigant could not appeal from a mere finding that reasonable reunification services had been provided unless some adverse action had been taken. (Id. at pp. 1153-1154.) The difference between Melinda K. and the present case is clear. A.M. is not appealing a mere “finding.” Rather, he is challenging an order which denies him the right to reunification services.
B. Merits
1. Rehearing procedure
The parties agree that Commissioner Garcia was sitting as a juvenile court referee. As such, Commissioner Garcia’s determination A.M. was a presumed father is subject to rehearing before a judge. (§ 252; In re Lionel P. (1977) 20 Cal.3d 260, 263.) The rehearing must be conducted de novo. (§ 254; Cal. Rules of Court, rule 5.542(e); In re Roderick U. (1993) 14 Cal.App.4th 1543, 1551.)
2. Voluntary paternity declaration and presumed father status
Family Code section 7574 states that a completed voluntary paternity declaration has the same force and effect as a paternity judgment. Family Code section 7574 sets forth the contents of a valid voluntary paternity declaration. Family Code section 7573 provides that a completed voluntary paternity declaration establishes paternity and may serve as a basis for child support, custody and visitation orders. The parties agree that the voluntary paternity declaration must be witnessed by a properly qualified witness and filed with the Department of Child Support Services. (Fam. Code, §§ 7571, subd. (f) [witness qualification requirement]; 7573 [filing requirement].)
Family Code section 7574 states: “(a) The voluntary declaration of paternity shall be executed on a form developed by the Department of Child Support Services in consultation with the State Department of Health Services, the California Family Support Council, and child support advocacy groups. [¶] (b) T he form described in subdivision (a) shall contain, at a minimum, the following: [¶] (1) The name and the signature of the mother. [¶] (2) The name and the signature of the father. [¶] (3) The name of the child. [¶] (4) The date of birth of the child. [¶] (5) A statement by the mother that she has read and understands the written materials described in Section 7572, that the man who has signed the voluntary declaration of paternity is the only possible father, and that she consents to the establishment of paternity by signing the voluntary declaration of paternity. [¶] (6) A statement by the father that he has read and understands the written materials described in Section 7572, that he understands that by signing the voluntary declaration of paternity he is waiving his rights as described in the written materials, that he is the biological father of the child, and that he consents to the establishment of paternity by signing the voluntary declaration of paternity. [¶] (7) The name and the signature of the person who witnesses the signing of the declaration by the mother and the father.”
Family Code section 7611 lists the exclusive manner in which an alleged or biological father can become a presumed father. (In re Zacharia D., supra, 6 Cal.4th at p. 449 [construing predecessor provision of Fam. Code, § 7611]; In re E.O. (2010) 182 Cal.App.4th 722, 727; In re Vincent M. (2008) 161 Cal.App.4th 943, 954 & fn. 11.) The child argues A.M. is a presumed father based on the following language in Family Code section 7611, “A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2....”
Family Code section 7611 states: “A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: [¶] (a) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [¶] (b) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. [¶] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [¶] (c) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (1) With his consent, he is named as the child’s father on the child’s birth certificate. [¶] (2) He is obligated to support the child under a written voluntary promise or by court order. [¶] (d) He receives the child into his home and openly holds out the child as his natural child. [¶]... (f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.”
Family Code section 7570 et seq. provides for the filing of a voluntary paternity declaration. An alleged father becomes a presumed father by properly executing and filing a voluntary paternity declaration with the Department of Child Support Services. (Cal. Rules of Court, rule 5.635(c) [“A man is presumed to be the father of the child under Family Code section 7611 if the voluntary declaration has been properly executed and filed”]; In re Mary G. (2007) 151 Cal.App.4th 184, 198-203.) Thus, if the voluntary paternity declaration fully complies with the requirements imposed by Family Code section 7570 et seq., then A.M. is entitled to presumed father status.
3. Judge Andrews could reasonably find there was insufficient evidence the father complied with the witness qualification and filing requirements.
A voluntary paternity declaration can be effective only when it has been properly executed and filed. (Cal. Rules of Court, rule 5.635(c).) At the rehearing proceeding, no evidence was presented as to the circumstances of the father’s execution of the voluntary paternity declaration and its filing with the Department of Child Support Services.
In order to be valid, the voluntary paternity declaration must be witnessed by staffs in California of: local child support offices; local registrars of births and deaths; courts; or county welfare offices. (Fam. Code § 7571, subd. (f).) There is no evidence Mr. Thakur, the mother’s trial counsel who executed the voluntary paternity declaration as the witness, fits within any of these categories. There is no merit to the suggestion Mr. Thakur was a court staffer within the meaning of Family Code section 7571, subdivision (f). He was a lawyer appointed to represent the mother and was part of the dependency counsel system in Los Angeles County. Similarly, there was no evidence the voluntary paternity declaration was filed with the Department of Child Support Services as required by Family Code section 7573.
Mr. Lee stated that, as an officer of the court, he was representing the voluntary paternity declaration had been filed with the Department of Child Support Services. However, Judge Andrews correctly noted that Mr. Lee’s representation did not constitute evidence. The unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11[“It is axiomatic that the unsworn statements of counsel are not evidence”]; People v. Kiney (2007) 151 Cal.App.4th 807, 815 [“Unsworn statements of counsel are not evidence because unsworn testimony in general does not constitute ‘evidence’ within the meaning of the Evidence Code”].)
Finally, there is no merit to the child’s argument that the requirement the voluntary paternity declaration be executed by one of the staff members specified in Family Code section 7571, subdivision (f) is preempted by 45 Code of Federal Regulations part 303.5(g)(ii)(F). The child reasons title 42 United States Code section 666(a)(5)(C)(iii)(bb) requires a state, as a condition of receiving specified federal funds, to create a voluntary paternity establishment process.
Title 42 United States Code section 666(a)(5)(C)(iii)(bb), states: “The Secretary shall prescribe regulations specifying the types of other entities that may offer voluntary paternity establishment services, and governing the provision of such services, which shall include a requirement that such an entity must use the same notice provisions used by, use the same materials used by, provide the personnel providing such services with the same training provided by, and evaluate the provision of such services in the same manner as the provision of such services is evaluated by, voluntary paternity establishment programs of hospitals and birth record agencies.” Title 42 United States Code section 666(a)(5)(C)(iii)(bb) was adopted as part of The Personal Responsibility and Work Opportunity Reconciliation Act of 1996. (Pub. L. No. 104-193 (Aug. 22, 1996) 110 Stat. 2105, 2228.) Pursuant to title 42 United States Code section 666(a)(5)(C)(iv), a state, as a condition of receipt of specified federal funds, must provide for a voluntary paternity declaration procedure.
Title 42 United States Code section 666(a)(5)(C)(iv) states: “Use of paternity acknowledgment affidavit. Such procedures must require the State to develop and use an affidavit for the voluntary acknowledgment of paternity which includes the minimum requirements of the affidavit specified by the Secretary under section 652(a)(7) [of this title] for the voluntary acknowledgment of paternity, and to give full faith and credit to such an affidavit signed in any other State according to its procedures.”
As required by 42 United States Code section 666(a)(5)(C)(iii)(bb), the Secretary of Health and Human Services promulgated 45 Code of Federal Regulations part 303.5(g) which requires each state receiving specified federal funds to establish a voluntary paternity declaration program. 45 Code of Federal Regulations part 303.5(g)(ii) identifies where voluntary paternity declaration programs must be established and provides a list of other places where the state may determine such services will be available. 45 Code of Federal Regulations part 303.5(g)(ii)(F) states: “The voluntary paternity establishment services program must also be available at the State birth record agencies, and at other entities designated by the State and participating in the State’s voluntary paternity establishment program. These entities may include the following types of entities: [¶]... (F) Legal Aid agencies, and private attorneys....” (Italics added.) The child asserts 45 Code of Federal Regulations part 303.5(g)(ii)(F), with the reference to legal assistance agencies and private attorneys, preempts the requirement in Family Code section 7571, subdivision (f) that a witness to the execution of a voluntary paternity declaration must be a staff member of local child support or birth and death registrars offices, courts or county welfare offices.
We respectfully disagree with the child’s preemption contentions. As noted, 45 Code of Federal Regulations part 303.5(g)(ii)(F) does not require a state to permit a court appointed attorney to validly witness a voluntary paternity declaration The word “may” in 45 Code of Federal Regulations part 303.5(g)(ii)(F) indicates a state has the option of allowing a court appointed lawyer be part of a voluntary paternity establishment program. There is no evidence of a Congressional or regulatory agency intention to mandate that a court appointed lawyer be permitted to witness the execution of a voluntary paternity declaration or that Family Code section 7571, subdivision (f) meaningfully interferes with any federal interest. Thus, the child’s federal preemption contention has no merit. (Wyeth v. Levine (2009) 555 U.S. __, __ [129 S.Ct. 1187, 1193-1195]; Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1095-1099.)
C. The erroneous exercise of discretion in connection with Mr. Lee’s continuance request is harmless
During the rehearing proceeding before Judge Andrews, Mr. Lee requested the matter be continued so evidence could be presented as to the filing of the voluntary paternity declaration with the Department of Child Support Services and the training sessions attended by Mr. Thakur. A continuance motion in dependency cases must be supported by a good cause showing in a declaration filed two days before a scheduled hearing. (§ 352, subd. (a); Cal. Rules of Court, rule 5.550(a)((1) & (4); In B.C. (2011) 192 Cal.App.4th 143-144.) We review the denial of a continuance motion for an abuse of discretion. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604-605; In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
Judge Andrews denied the continuance request solely on the ground that her decision must be premised only on the evidence before Commissioner Garcia. However, when a rehearing application is granted, the ensuing hearing is a de novo proceeding. (§ 254; Cal. Rules of Court, rule 5.540(b); see In re Randy R. (1977) 67 Cal.App.3d 41, 44.) The sole legal basis of Judge Andrews’ ruling in response to the continuance motion was incorrect-Mr. Lee had a right to present evidence anew before her during a de novo hearing. In this regard, Judge Andrews’ ruling denying Mr. Lee’s continuance motion was a ruling which exceeded the scope of her allowable judicial discretion.
Even though the stated ground for denying the continuance motion was incorrect, the child is not entitled to a reversal unless there is a reasonable probability of a different result. (In re Celine R. (2003) 31 Cal.4th 45, 57-58; People v. Watson (1956) 46 Cal.2d 818, 836.) It is undisputed that Mr. Thakur witnessed the execution of the voluntary paternity declaration. It is further undisputed Mr. Thakur was a lawyer appointed by the juvenile court to represent the father. Mr. Thakur is not a court employee or staff member. Thus, Mr. Thakur is not one of the staffers specified in Family Code section 7571, subdivision (f). A continuance would not have cured this defect in the voluntary paternity declaration. There is no reasonable probability A.M. would be found to be a presumed father had the continuance request been granted because, as a matter of law, the voluntary paternity declaration had not been executed by a legally qualified witness as required by Family Code section 7571, subdivision (f).
V. DISPOSITION
The order issued on rehearing finding A.M. is not a presumed father based solely on the voluntary paternity declaration executed on March 10, 2010, is affirmed.
We concur: ARMSTRONG, ACTING P. J., KRIEGLER, J.