Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Ct. No. BJP016176 Thomas L. Bender, Judge.
Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
David A. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Cornell, J. and Gomes, J.
OPINION
INTRODUCTION
Appellant S.L. (appellant) is the biological father of A.S., who was taken into protective custody at birth because of methamphetamine use of her mother, A.M. Appellant and the mother were not married or living together when the child was born and he did not have presumed father status. The court ultimately found he was a biological father pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), but denied his motion for modification and reunification services because of his lengthy criminal record, status as an active gang member, and previous failure to reform for an older child who was never in his custody.
As we will discuss post, the term “Kelsey S. father” is given to an unwed, noncustodial biological father who promptly comes forward and demonstrates a full commitment to his parental responsibilities, emotional, financial and otherwise, but a third party thwarts his attempt to achieve presumed father status. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582 (Elijah V.).)
On appeal, appellant contends the court should have granted his motion for modification and set aside the permanency planning hearing, that it was required to order reunification services based upon his status as a Kelsey S. father, that finding raised him to the status of a presumed father, and there was no evidence he was an unfit parent or reunification services would be detrimental to the child. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 2008, A.M. was admitted to the hospital in labor, admitted she had been using methamphetamine, and tested positive for the drug. On either January 25 or 26, 2008, appellant arrived at the hospital to see A.M. but he was asked to leave because he appeared intoxicated.
A.M. had a lengthy history of methamphetamine use. In May 2002, A.M. was arrested for possession of methamphetamine and narcotics paraphernalia, child endangerment, and violating probation. In April 2005, A.M. was arrested for possession of methamphetamine; she was subsequently convicted and placed in a drug treatment program but she failed to comply with the terms and conditions. In March 2006, A.M. appeared in felony drug court and received a suspended prison sentence of 16 months. In May 2007, A.M. violated probation and admitted methamphetamine use, but she was allowed to remain in a drug treatment program. On February 5, 2008, A.M. was arrested for violating probation because she used methamphetamine during her pregnancy, and she was subsequently remanded into custody pursuant to the 16-month term originally imposed.
On January 27, 2008, A.M. gave birth to twins but one child was still-born. The surviving child, A.S., was immediately taken into protective custody and subsequently placed in foster care.
At the time of A.S.’s birth, A.M. was married. A.M. initially refused to identify A.S.’s father, but subsequently said the baby’s father was appellant and not her husband’s. A.M. and appellant were never married and were not living together when the child was born. A.M. characterized her relationship with appellant as a brief affair, and stated that she relapsed into methamphetamine use as a result of the breakup.
A.M. had already lost custody of three older children (born in 1998, 2004, and 2006). The oldest child had been removed pursuant to a juvenile dependency petition and was adopted by other relatives. The other two children were living with A.M.’s mother and were being safely cared for, and A.M. wanted A.S. placed in that household.
On January 30, 2008, a juvenile dependency petition was filed in the Superior Court of Madera County alleging that A.S. was within the meaning of Welfare and Institutions Code section 300, subdivisions (b), (g), and (j), based on A.M.’s methamphetamine use and the termination of her parental rights as to her older son. The petition identified her husband as A.S.’s presumed father and appellant as the alleged father.
All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
On January 31, 2008, the court ordered A.S. detained pursuant to section 300, subdivisions (b) and (j). A.M.’s husband advised the court he was not A.S.’s father and waived his right to reunification services. A.M. admitted appellant was A.S.’s father. The court found A.M.’s husband was the presumed father and appellant was the alleged father. Appellant was incarcerated in Kern County and the court ordered him transported for subsequent hearings.
On February 14, 2008, the court held the jurisdiction hearing and found the allegations in the petition true. A.S. was in foster care. While she had breathing difficulties at birth, she did not have any further health or developmental problems. A.S.’s maternal grandmother requested placement, she had one visit with the child, and she acted appropriately and was nurturing toward the child. Appellant requested the court to order a paternity test. The court agreed, and suggested appellant could file a section 388 petition for modification if he was the biological father.
On February 29, 2008, appellant filed a “JV-505” statement that he was A.S.’s biological father and requested the court to order genetic testing.
The Disposition Hearing and Order for the Section 366.26 Hearing
On March 10, 2008, the court conducted the disposition hearing. Appellant was still in custody on a parole violation, but he was transported to Madera County and appeared at the hearing. Appellant requested genetic testing to confirm he was A.S.’s biological father because his mother would assume custody of the child. Appellant was willing to submit the matter without requesting reunification services because he first wanted to receive the results of genetic testing before he claimed parentage. If the genetic tests were positive, he planned to file a petition for modification based upon the changed circumstances.
Respondent explained the maternal grandmother was being assessed for permanent placement. Respondent declined the request of appellant’s mother for an evaluation because appellant was only an alleged father. Respondent was willing to evaluate appellant’s mother for placement if appellant “makes presumed father status.”
The court denied reunification services to A.M. because of her failure to make reasonable efforts to treat the problems that led to the removal of her oldest child, and found her husband, the presumed father, had waived his right to reunification services. The court set the section 366.26 hearing for A.S. The court ordered genetic testing to determine A.S.’s paternity. The court advised appellant he was not entitled to reunification services as an alleged father, but his attorney could file a petition for modification if the genetic testing confirmed his parentage, and then the paternal grandmother could request assessment for relative placement. A.S. was subsequently placed with her maternal grandmother.
Appellant’s Section 388 Petition
On May 5, 2008, the court found appellant was A.S.’s biological father based on the results of the genetic tests.
On May 8, 2008, appellant filed a “JV-180” petition for modification pursuant to section 388, and requested the court set aside its order for a section 366.26 hearing and order reunification services based upon the new evidence of the genetic tests. Appellant was still in custody but he requested A.S.’s placement with his mother pending his scheduled release in September 2008. Appellant argued there was no evidence to show he was an unfit parent or that custody would be detrimental to A.S., and he should be elevated to the status of a “Kelsey S. father” because he promptly came forward to claim paternity.
Appellant’s mother filed a supporting declaration that she would care for A.S. until appellant was released from custody, and she would permanently care for the child if appellant failed to comply with the reunification plan. She declared she took A.M. to the doctor throughout her pregnancy and helped her any way she could. She further declared appellant arrived at the hospital to see A.M. a few days before A.S.’s birth, a doctor notified him that A.M. had been using drugs, and he became angry and left the hospital.
On June 10, 2008, respondent filed opposition to appellant’s petition for modification, and argued A.S. was living in a relative approved home with her maternal grandmother, and moving her to the paternal grandmother’s home would be upsetting and confusing to the child, who was almost six months old. Respondent acknowledged appellant was a noncustodial biological parent, but appellant failed to demonstrate how A.S.’s best interests would be served by changing custody or taking her to the county jail for visitation. Appellant lacked any parent-child relationship or bond with A.S. that would be preserved by jail visits.
Respondent also cited to appellant’s “long standing history of criminal activities that have led him to long periods of incarceration in prison,” and argued appellant’s “habitual criminal activity” established detriment. Respondent requested the court to take judicial notice of appellant’s criminal record, that he was convicted of committing terrorist threats (Pen. Code, § 422) with a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(B)) in 2003, and he was convicted of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)) in 2005. He was taken into custody for a parole violation shortly after A.S.’s birth.
Respondent asserted there was no evidence to establish appellant was a “Kelsey S. father” because he was not involved with any prenatal appointments, he failed to provide financial support, and he never asked A.M. if he was the father. Respondent argued:
“[Appellant] has chosen a life which over a long stretch of time has included criminal activity, parole violations and periods of incarceration. He has not chosen to take care that his potential biological offspring will have a stable and permanent home with him. [Appellant] has expressed an interest in other family members taking care of [A.S.]. However, this plan is not in the child’s best interests as she is stable in the home of maternal grandmother.
“[Appellant] may attempt to argue that mother’s conduct had unilaterally precluded him from meeting the statutory requirements for status of presumed father. The mere fact that she is not signing a voluntary declaration of paternity is not enough. The voluntary declaration of paternity must not be signed if the mother remains married to someone else, and this remains the case.”
The Contested Hearing
On June 16 and 17, 2008, the court conducted a contested hearing on appellant’s section 388 petition for modification and request for reunification services.
The court granted respondent’s request for judicial notice of appellant’s criminal record, and heard testimony from appellant’s parole officer as to his criminal conduct and prison terms. In March 2001, appellant was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and placed on probation. In May 2003, he was convicted of terrorist threats with a criminal street gang enhancement, and found in violation of his probation in the previous case. He was sentenced to five years in state prison. In April 2005, he was convicted of being a felon in possession of a firearm, with a gang enhancement and a prior felony conviction enhancement, and sentenced to 32 months in prison.
Appellant’s parole officer testified he was subsequently released on parole, and found in violation of parole for contributing to the delinquency of a minor in June 2007, because of his involvement with minors who were drinking. Appellant was again found in violation of parole for associating with prohibited persons on January 11, 2008. Both violations were treated administratively and he was continued on parole. On January 29, 2008 (just two days after A.S. was born), appellant was taken into custody for violating parole for again associating with prohibited persons, and received eight months. His scheduled release date was September 29, 2008.
Appellant’s parole officer testified appellant was “an active gang member” and his association with other gang members was “his only problem. If he would cut loose his friends I believe he could do all right.” Appellant was currently housed with fellow active gang members in jail and his behavior was fine. However, appellant could have asked to be placed in a non-gang area of the jail, as many former gang members have done, if he wanted to denounce his gang membership.
Appellant testified at the hearing that he had a very brief relationship with A.M., they never planned to have a long-term relationship, appellant did not know she was married until the instant dependency matter began, and he did not know about her substance abuse problem. Their relationship began in June 2007, things did not work out, the relationship ended in July or August 2007, and they did not see each other again.
Appellant testified he began a relationship with another woman, and learned that woman was pregnant in August or September 2007. A.M. called him in October or November 2007, informed him about her pregnancy and that he was the father, and said she wanted to get back together. Appellant told A.M. he was in a relationship with another woman, but promised he would “do anything I can to help her out, take her to the doctor’s office.” Appellant thought his mother took A.M. to the doctor a couple of times.
Appellant admitted he did not see A.M. until she was eight months pregnant. He did not give her any money for prenatal care or pay for any expenses. Appellant was aware A.M. was carrying twins, and they agreed “to me having one daughter and her keeping the other one.” Appellant admitted he did not provide A.M. with any help for the twin she was supposed to take care of.
Appellant testified he obtained “bassinets and stuff like that,” including clothing and some diapers, “[l]ittle stuff, not really nothing major,” for his twin. Appellant kept those items at his mother’s house for when the child arrived. Appellant was living with his girlfriend and she was still expecting their child, but he planned to move the twin’s things to his house later on, and he intended to have that twin live in the house where he lived with his girlfriend and the child they were expecting.
Appellant testified he rushed to the hospital when his mother informed him that A.M. was in labor. He learned one of the twins did not survive and A.M. tested positive for methamphetamine. Appellant still did not know about A.M.’s drug problem and he was “devastated, mad, you know what I mean, what happened,” and he left the hospital. Appellant later tried to see A.S. at the hospital, but he was refused admission because he was not listed as the father and the hospital advised him to contact the social worker.
Appellant testified he immediately contacted the hospital’s social worker and asked how to get custody. The social worker advised him to appear at the upcoming dependency hearing. No one asked appellant to sign a declaration of paternity. Appellant planned to attend the dependency hearing but he was arrested for violating parole because he was “hanging around with another parolee,” who was his neighbor and a gang member. Appellant testified there “wasn’t much” he could do about his child’s custody because he was sent back to prison.
Appellant conceded he was the father of a three-year-old boy who had never lived with him. The boy lived with appellant’s mother, and appellant claimed his mother regularly dropped off the child at his house so he could spend time with him, but he did not raise or care for the child.
Appellant also conceded his girlfriend’s child was born in May 2008, while he was in custody on the parole violation. Upon his release, he intended to reunite with his girlfriend and take care of both A.S. and his other newborn child.
Appellant asked the court to give him a chance to take care of A.S.
“Q. And how’s the Court going to be assured that you’re not going to end up back in prison and this child is not gonna [sic] have her father raising her?
“A. By taking my word from me saying that I’m not gonna [sic] be out there hanging around with the people I was hanging around with, the people that—that keeps bringing me back in jail, you know. ... I got a girlfriend. I got another newborn I got to worry about. I got kids I got to take care of, look up to.”
The social worker testified A.S. was doing well with her maternal grandmother, she was in a stable placement, and the permanency plan was for the grandmother to obtain guardianship. The social worker opposed changing A.S.’s placement to her paternal grandmother because the child already had established a relationship and bond with her maternal grandmother. The social worker did not think it would be beneficial to offer reunification services and opposed visitation between A.S. and appellant while he was in jail because the child was only five months old, there would be a locked glass partition between them, and such visits would not be in the child’s best interests. The social worker was not sure if A.S. would benefit from getting to know and recognize her father.
The social worker conceded she was not aware appellant tried to visit the child in the hospital, or that he was denied visitation because he was not listed as the father. The social worker also conceded appellant would not have been allowed to visit the child at the hospital until he was identified as a presumed father.
At the conclusion of the hearing, the court found appellant was a Kelsey S. father, but the case was unusual because of the short time between his discovery of the pregnancy and the child’s birth. Once appellant learned of the pregnancy, he arranged for transportation through his mother. He did not provide any money to A.M. but there was no evidence of any bills due because of the pregnancy. He reached an agreement with A.M. to obtain custody of one twin, he purchased some items for that twin, and he went to the hospital when A.M. was in labor. “So I think he came forward to the extent that he could.” The court found appellant was prevented from being a presumed father because A.M. was already married, respondent detained the child at birth, and all the evidence showed he was a Kelsey S. father.
The court noted appellant was going to be in custody for three more months, and it was not appropriate to award custody to him or place A.S. with the paternal grandmother because she had not been approved for a relative placement. In addition, A.S. was already with her maternal grandmother and was doing very well there, so custody and placement with appellant’s family was not appropriate.
As for reunification services, the court found appellant was not fit and services would not be in A.S.’s best interests. The court reviewed appellant’s criminal record and noted he had a felony conviction with a gang enhancement, he subsequently suffered another felony conviction, he was on parole, and his parole agent testified he was an active gang member. The court denied reunification services based upon the entirety of the record and the testimony at the contested hearing. It stated:
“[Appellant] testified and said, ‘Well, I’m going to change now because I have this daughter to take care of, and I’m in a relationship, and I have another son.’
“However, he also has an older child that’s three, and he didn’t change for that child. He didn’t change for that child and honestly he says he’s going to change but he hasn’t changed. He’s currently an active gang member in a gang module [in jail]. If he wanted to change, he could change. He could be in a different [jail] module.... He could remove himself from being a gang member, but he hasn’t done that. So he hasn’t changed. I don’t think it would be appropriate to order reunification services.”
The court found appellant violated parole by associating with other gang members, and his gang association continued for several years after his initial felony conviction and gang enhancement. “The point is that he hasn’t been denounced from his gang. He’s still an active gang member. I think that he’s unfit, and ... I don’t think it’s in the best interest of [A.S.] to offer services because of that part of it.”
The court noted appellant was being temporarily held in county jail pending the resolution of the dependency case, he was going to be sent back to state prison for the rest of his parole violation, and there was no evidence as to what type of facilities existed for visitation. The court found there was no bond between appellant and the child, he would be in custody for three more months, reunification services would be for six months, and he would be in custody for over half that time. The court denied appellant’s section 388 petition and set the section 366.26 hearing.
DISCUSSION
Appellant contends the court’s finding that he was a Kelsey S. father raised him to the status of a presumed father, and the court was required to order reunification services pursuant to section 361.5, subdivision (a), which states in relevant part that the juvenile court “shall” order such services to the “statutorily presumed father” absent evidence of detriment. Appellant further asserts there was no evidence of detriment or that he was an unfit parent, and the court improperly denied his section 388 petition for modification.
Respondent counters that the court’s ruling was correct because appellant sought reunification services through a section 388 petition for modification, which was filed after the court terminated reunification services and set the section 366.26 hearing. Respondent contends that given the procedural context of the case, the court did not abuse its discretion when it found that reunification services were not in the child’s best interests.
To resolve these issues, we must review paternity definitions, the meaning of Kelsey S., and the impact of appellant’s decision to seek reunification services through a section 388 petition for modification.
Alleged, Presumed, and Biological Fathers
When the instant dependency proceedings began, appellant was identified as A.S.’s alleged father. The husband of A.M., when the child was born, was deemed the “presumed” father, but he subsequently waived any right to reunification services. Appellant’s petition for modification was based upon the new evidence of the genetic tests, that he was A.S.’s biological father rather than an “alleged” father, and thus entitled to reunification services.
“The Uniform Parentage Act [citation] (Act) provides the statutory framework by which California courts make paternity determinations. [Citations.] Under this statutory scheme, California law distinguishes ‘alleged,’ ‘biological,’ and ‘presumed’ fathers. [Citation.] ‘A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an “alleged” father. [Citation.]’ [Citation.] ‘A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status .…’ [Citation.]” (In re J.L. (2008) 159 Cal.App.4th 1010, 1018, fn. omitted (J.L.).)
“‘Presumed’ fathers are accorded far greater parental rights than alleged or biological fathers. [Citation.] Presumed father status is governed by [Family Code] section 7611, which sets out several rebuttable presumptions under which a man may qualify for this status, generally by marrying or attempting to marry the child’s mother or by publicly acknowledging paternity and receiving the child into his home. [Citations.] Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611. On the contrary, presumed father status is based on the familial relationship between the man and child, rather than any biological connection. [Citation.]” (J.L., supra, 159 Cal.App.4th at p. 1018.)
“Presumed father status ranks highest.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801 (Jerry P.).) “[O]nly a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5,” and custody of the child under section 361.2. (In re Zacharia D. (1993) 6 Cal.4th 435, 451 (Zacharia D.); Jerry P, supra, 95 Cal.App.4th at p. 801.) The court has the discretion to order reunification services for an alleged father, where appropriate, when he has filed a declaration of paternity and the court finds such services will benefit the child. (In re Raphael P. (2002) 97 Cal.App.4th 716, 726, fn. 7; In re Eric E. (2006) 137 Cal.App.4th 252, 258, fn. 5 (Eric E.).)
Kelsey S.
The parties agree appellant never received presumed father status under Family Code section 7611, but the court found he was an unwed biological father under Kelsey S. The parties dispute the impact of that finding. Appellant contends the court was required to treat him as a presumed father and order reunification services absent a showing of detriment. Respondent takes the opposite position. We thus turn to the meaning of the court’s Kelsey S. finding.
Under Kelsey S., an unmarried biological father has a constitutional right to contest paternity and request reunification services even though he does not qualify under any of the presumptions listed in Family Code section 7611. (J.L., supra, 159 Cal.App.4th at p. 1022.) Kelsey S. interpreted the predecessor to Family Code section 7611, and found the statute violated “the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child’s biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child’s best interest.” (Kelsey S., supra, 1 Cal.4th at p. 849.)
“… If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities--emotional, financial, and otherwise--his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child’s well-being is presumptively best served by continuation of the father’s parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.” (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted, italics added.)
Kelsey S. explained that the court must consider “all factors relevant to that determination. The father’s conduct both before and after the child’s birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate ‘a willingness himself to assume full custody of the child—not merely to block adoption by others.’ [Citation.] A court should also consider the father’s public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.” (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted.)
While Kelsey S. dealt with adoption proceedings, the court’s discussion of constitutional principles has been extended to the rights of biological fathers in dependency proceedings. (See, e.g., Zacharia D, supra, 6 Cal.4th at pp. 450-451; In re Julia U. (1998) 64 Cal.App.4th 532, 540-541; Jerry P., supra, 95 Cal.App.4th at pp. 810-812.) A court’s finding that a father has Kelsey S. status is reviewed for substantial evidence. (J.L., supra, 159 Cal.App.4th at p. 1023.)
Although Family Code section 7611 makes no provision for a Kelsey S. father in its list of presumptions, some courts have found that “a father asserting valid Kelsey S. rights may effectively qualify for presumed father status as the result of his constitutional right to parent, which overrides any contrary statutory direction.” (J.L., supra, 159 Cal.App.4th at p. 1023.) Other cases have found that the Supreme Court did not hold that a Kelsey S. father “was a presumed father under Family Code section 7611,” or that “under any theory that such a father had presumed father status.” (In re Vincent M. (2008) 161 Cal.App.4th 943, 957 (Vincent M.).) Indeed, Kelsey S. emphasized “the narrowness of our decision. The statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities. Our statutes [citations] are constitutionally sufficient when applied to a father who has failed to make such a showing.” (Kelsey S., supra, 1 Cal.4th at pp. 849-850.)
In the instant case, the court found appellant, an unwed biological father, was also a Kelsey S. father. While the evidence on this issue is a bit sparse (see, e.g., Elijah V., supra, 127 Cal.App.4th at p. 583), respondent has not filed a cross-appeal to challenge the court’s Kelsey S. finding that appellant “came forward to the extent that he could” and that finding is supported by substantial evidence. When appellant learned about A.M.’s pregnancy, he had his mother provide A.M. with transportation to doctor’s appointments, there was no evidence of outstanding medical bills he failed to pay, they had a unique agreement to divide custody of the expected twins, he obtained supplies in anticipation of obtaining custody of one twin, he tried to see A.S. immediately after her birth but was barred because he was not identified as the father, and he immediately contacted the social worker to claim he was the father. Appellant was prevented from being a presumed father because A.M. was married when A.S. was born and the child was immediately taken into protective custody.
Appellant’s Section 388 Petition for Reunification Services
Appellant contends that once the court found he was a Kelsey S. father, he was entitled to the same reunification services as any presumed father, section 361.5 required the court to provide him with reunification services, and such services should have been presumed to be in A.S.’s best interests absent a showing that he was unfit under section 361.5, subdivision (b) or (e).
However, it is important to note the context in which appellant sought reunification services. As an alleged father, appellant was not entitled to custody or reunification services, but the court herein was well-aware appellant likely was A.S.’s biological father and he moved for genetic testing to prove that fact. Nevertheless, appellant clearly declined to request reunification services at the disposition hearing until the genetic tests confirmed he was A.S.’s biological father. Appellant was aware the court was about to terminate reunification services and set the section 366.26 hearing but he did not ask the court to delay those orders. Instead, he advised the court he planned to file a section 388 petition for modification to request reunification services if the genetic tests confirmed his parentage. When those tests confirmed his parentage, the court found he was the biological father and appellant filed the section 388 petition for modification.
While the court found appellant was a Kelsey S. father, it did so in the context of ruling on his section 388 petition for modification. Section 388 allows the juvenile court to modify or set aside a previous order if new evidence or changed circumstances exist, and the proposed modification is in the best interests of the minor. The moving party has the burden of proof by a preponderance of the evidence, the petition is addressed to the sound discretion of the juvenile court, and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Even if appellant is correct that the court’s Kelsey S. finding raised him to presumed father status, his motion was subject to the requirements of section 388, and he would have been entitled to reunification services only if he persuaded the court that would be in A.S.’s best interests. A series of cases have discussed the interplay between section 388 and requests for reunification services. In Zacharia D., the Supreme Court addressed the impact of seeking reunification services pursuant to a section 388 petition, where a newly discovered biological father argued at the 18-month hearing he should be deemed a presumed father and offered reunification services. The court noted that “[i]n developing parameters on the reunification process, ‘the Legislature balanced numerous competing fundamental interests, including the child’s compelling interest in “a placement that is stable, permanent, and which allows the caretaker to make a full emotional commitment to the child,” the parents’ compelling “interest in the companionship, care, custody and management” of their child [citation], and the “preservation of the family whenever possible....” [Citation.]’ [Citation.]” (Zacharia D., supra, 6 Cal.4th at p. 446.) The following determination was the result of this balancing test:
“‘[U]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.’ [Citation.] ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.] ‘The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the “escape mechanism” that ... must be built into the process to allow the court to consider new information.’ [Citation.]” (Zacharia D., supra, 6 Cal.4th at p. 447, italics added.)
Zacharia D. held that as a result, “if a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, ... he is not entitled to such services under section 361.5.... [The] only remedy ... [is] to file a motion to modify under section 388.” (Zacharia D., supra, 6 Cal.4th at p. 453.)
“While a biological father is not entitled to custody under section 361.2, or reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, he may move under section 388 for a hearing to reconsider the juvenile court’s earlier rulings based on new evidence or changed circumstances. [Citations.]” (Id. at pp. 454-455, fn. omitted.)
Zacharia D. thus held when a dependency case is in the permanency planning stage, the focus has shifted to the child’s needs for permanence and stability, and the reunification issue may only be revived if it is in the child’s best interest. (Zacharia D., supra, 6 Cal.4th at pp. 447, 456.)
In Eric E., the court similarly held a section 388 petition was required to request reunification services after the section 366.26 hearing is set. In that case, two different men, the mother’s husband and the child’s biological father, were granted reunification services. (Eric E., supra, 137 Cal.App.4th at p. 256.) Both men petitioned for presumed father status, but the petitions were filed at the end of the reunification period and after the section 366.26 hearing had been set. (Eric E., supra, at p. 256.) The biological father was denied presumed father status, and claimed on appeal that the trial court erred in rejecting his petition. Eric E. followed Zacharia D., and held the biological father was properly required to file a section 388 petition to establish presumed father status. (Eric E., supra, 137 Cal.App.4th at pp. 258, 261.)
“… We do not hold that the trial court generally should apply a best interest standard in determining presumed father status. However, in this case, where [he] waited until after his reunification services had terminated and after a section 366.26 hearing had been set, his request for presumed father status must be brought as a section 388 petition. In the context of the dependency proceeding, [he] had not established that he was a presumed father and therefore, at the time of the section 366.26 hearing, he was a biological father or an alleged father. [Citation.]” (Eric E., supra, 137 Cal.App.4th at p. 259, italics added.)
In Vincent M., the court addressed the interplay between Kelsey S. status and a section 388 petition for modification, where the child’s biological father filed a petition for modification to be named the presumed father after the section 366.26 hearing had been set. The trial court granted the petition, found he was a presumed father pursuant to Kelsey S. and entitled to reunification services, and vacated the section 366.26 hearing, but it did not consider the child’s best interests. (Vincent M., supra, 161 Cal.App.4th at pp. 949-951)
Vincent M. followed Zacharia D. and held that a biological father’s “‘only remedy’” to assert paternity after the expiration of the reunification period is to file a section 388 petition to modify. (Vincent M., supra, 161 Cal.App.4th at p. 955.) Vincent M. expressly rejected the argument that a Kelsey S. finding should overcome the moving party’s requirements to show changed circumstances pursuant to a section 388 petition. (Vincent M., supra, 161 Cal.App.4th at p. 958.) Vincent M. relied on Zacharia D. and noted that once reunification services are terminated and a section 366.26 hearing is set, the focus shifts to the needs of the child for permanency and stability, and the parent has the burden to prove changed circumstances under section 388 “‘“to revive the reunification issue.”’ [Citation.]” (Vincent M., supra, 161 Cal.App.4th at p. 955, quoting Zacharia D., supra, 6 Cal.4th at p. 447.)
“[A] biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child’s best interest would be promoted by reunification services. The rule is the same whether his paternity was concealed from him or not. In reaching these conclusions, we hold that [Kelsey S. and related cases] do not support the dependency court’s ruling made at the section 366.26 permanency planning stage that a late-appearing father whose paternity was hidden from him by the mother is a presumed father entitled to reunification services without regard to the best interests of the child.” (Vincent M., supra, 161 Cal.App.4th at p. 947.)
Vincent M. thus held that even when a Kelsey S. determination is made, a section 388 petition will not be granted “unless there are changed circumstances or new evidence demonstrating it is in the child’s best interest to grant reunification services or custody. [Citations.]” (Vincent M., supra, 161 Cal.App.4th at p. 955, italics added.)
In the instant case, the parties herein agree appellant was not a presumed father at the time the court terminated reunification services and set the section 366.26 hearing. Indeed, appellant informed the court he was not going to claim paternity until he received the results of genetic tests, and appellant agreed with the court’s advisement he could file a section 388 petition if the tests confirmed he was A.S.’s father. Even if the court’s Kelsey S. finding somehow elevated appellant to presumed father status, that finding was made after the court terminated reunification services and set the section 366.26 hearing. Given the nature and circumstances in which appellant raised paternity, he had the burden to prove changed circumstances under section 388 and show it would be in the child’s best interests for the court to order reunification services.
As explained in Vincent M., appellant was required to show under section 388 there were changed circumstances or new evidence demonstrating the child’s best interests would be served by ordering reunification services for him. Based on the facts set forth above, the juvenile court did not abuse its discretion by finding that it was not in A.S.’s best interests to order reunification services for appellant. At the time of the contested section 388 petition, appellant was in custody for a parole violation. Appellant testified upon his release, he intended to reunify with his girlfriend, raise their child, and assume custody of A.S., and he would disassociate himself from his gang activities. The court discounted this testimony, however, and carefully distinguished that its decision was not simply based upon the discrete facts of appellant’s criminal record, lengthy periods of incarceration, or status as an active gang member. Instead, the court focused on appellant’s continuation of criminal conduct and active participation in gang activities even though he had a three-year-old son, he did not have custody of that child, and he continued to associate with gang members even though he was in a relationship with his girlfriend and they were expecting their own child, and he expected to assume custody of one of A.M.’s twins. The court did not abuse its discretion when it denied appellant’s section 388 petition and found it was not in A.S.’s best interests to extend reunification services and visitation to appellant.
Even if the court did not use the exact phrase, it implicitly found that reunification services would not be in the child’s best interests. (See, e.g., Zacharia D., supra, 6 Cal.4th at p. 456 [considering implied findings of juvenile court when evaluating motion that should have been section 388 petition]; Eric E., supra, 137 Cal.App.4th at p 261.)
It is important to note the time constraints in this case. The parent of a child who is less than three years old at the time of the child’s entry into foster care is entitled to only six months of reunification services. (§ 361.5, subd. (a)(2).) A child is presumed to have entered foster care on the date of the jurisdictional hearing or 60 days after the date it was removed from the physical custody of its parents, whichever is earlier. (§ 361.5, subd. (a)(3).) The court may extend services beyond the six-month period only if it finds that there is a substantial probability the child will be returned to the parent’s custody at the end of the extended period or the parent was not provided with reasonable services. (Ibid.; M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174-175.)
A.S. was taken into protective custody at birth in January 2008, the jurisdictional hearing was held in February 2008, the contested hearing on appellant’s petition for modification was held in June 2008, and appellant was going to be in custody on the parole violation until the end of September 2008. The child had already been placed with her maternal grandmother, she was in a stable and nurturing environment, and there was no evidence that ordering reunification services to appellant in order for him to obtain custody was in the child’s best interests.
We also note when a parent is incarcerated, section 361.5, subdivision (e) requires the provision of reasonable reunification services unless there is evidence of detriment. (In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344.) However, the statute contemplates the provision of such services only in the absence of any other statutory disqualifying grounds. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 76-77.) The court herein did not deny appellant’s section 388 petition simply because he was incarcerated, but because it found that reunification services would not be in A.M’s best interests given appellant’s previous failure to assume responsibility for his older child and terminate his active gang status, particularly since he was well-aware of A.S.’s impending birth, he purportedly agreed to assume custody of one of the twins at birth, and he and his girlfriend were expecting their own child at about the same time.
We thus conclude the court did not abuse its discretion when it denied appellant’s section 388 petition to set aside the section 366.26 hearing and order reunification services.
DISPOSITION
The order denying appellant’s section 388 petition is affirmed.