Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Super. Ct. No. J1379269, James E. Herman, Judge.
Anna L. Ollinger, under appointment by the Court of Appeal, for Appellant.
Dennis A. Marshall, County Counsel, County of Santa Barbara and Gustavoe E. LaVayen, Chief Deputy, for Respondent.
YEGAN, J.
Thomas L. appeals a juvenile court order denying him presumed father status of Cameron W. and reunification services. (Fam. Code, § 7611, subd. (d); Welf. & Inst. Code, § 361.5, subd. (b)(12).) We affirm.
All statutory references are to the Welfare & Institutions Code unless otherwise stated.
Facts and Procedural History
On April 24, 2000, Santa Barbara County Department of Social Services (DSS) detained Cameron (age 3) after he was found naked from the waist down, wandering down a busy street near a drug treatment facility where his mother lived. DSS filed a petition for failure to protect (§ 300, subd. (b)), no provision for support (§ 300, subd. (g)), and abuse of a sibling (§ 300, subd. (j)). The petition stated that it was the third time Cameron was found wandering alone without adult supervision. Mother had a criminal history for possession of a controlled substance and willful cruelty to a child, and was currently enrolled in an inpatient substance abuse program. Because of mother's substance abuse, mother failed to reunify with Cameron's two half-siblings after one of the children tested positive for methamphetamine at birth.
The petition stated that appellant, Cameron's alleged father, was incarcerated, unable to support the child, and had a criminal history that put Cameron at risk. Appellant's criminal record included robbery, use of a weapon in the commission of a felony, multiple parole violations, battery, driving under the influence with a suspended license, passing a fictitious check, burglary, possession of a controlled substance, and battery on a spouse/cohabitant.
Before the detention hearing, appellant denied paternity and requested genetic testing. Appellant said that he met mother in a homeless shelter and ended the relationship when mother started associating with the wrong people and using drugs. Appellant briefly lived with mother after Cameron was born and, within a matter of days or weeks, was arrested for domestic violence. Appellant claimed he had little to no contact with Cameron due to a protective order prohibiting contact with mother and Cameron.
At the detention hearing, appellant still had doubts about whether he was the biological father even though he was subject to a 2008 default judgment for child support. (Fam. Code, § 17430.) The trial court ordered Cameron to remain in the temporary care and custody of DSS.
At the May 27, 2010 jurisdiction/disposition hearing, appellant withdrew his request for DNA testing and sought presumed father status and reunification services.
The 2008 default judgment for child support establishes that appellant is Cameron's biological father. (Fam. Code, § 17430; see County of Lake v. Palla (2001) 94 Cal.App.4th 418, 426-427.) Presumed father status, however, turns on appellant's relationship with the child, not biology. Only a presumed father is entitled to receive reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 451-452.) As we shall explain, a presumed father is a man who comes forward promptly and demonstrates a full commitment to his paternal responsibilities to provide emotional, financial, and other support to the child. (In re A.A. (2003) 114 Cal.App.4th 771, 779.)
On June 24, 2010, the trial court sustained the petition after appellant and mother submitted to jurisdiction. DSS recommended that Cameron be removed from parental custody and the court by-pass reunification services. (§ 361.5.)
At a July 29, 2010 contested paternity/disposition hearing, appellant submitted a written statement (JV-505) that he lived with mother and Cameron from January 2007 to February 2007. Appellant claimed that he paid for food, utilities, formula, diapers, and clothing and bought toys for the child. When mother resumed using drugs, appellant confronted her, was arrested and charged with domestic battery, and allegedly ordered not to contact mother or Cameron.
Appellant declared that he saw Cameron several times when mother contacted him or asked him to baby sit. But in a phone interview, appellant told the case worker that he had not seen mother or Cameron for three years. Appellant told the case worker that the no contact order "should have already expired." During the hearing, appellant admitted that he did not sign the birth certificate or any paperwork acknowledging paternity and never paid child support. Appellant did not know Cameron's birthday and had no rent receipts or documentation that he provided support or had contact with Cameron.
Mother testified that appellant showed up at the hospital 45 minutes after Cameron was born. Mother and Cameron stayed with appellant for about a week at an apartment in Kalani Village. Appellant paid no support but provided "a couple of things of formula... and a pack of diapers." Mother denied there was a no-contact order prohibiting appellant from visiting Cameron and stated that appellant's family was always welcome to pickup Cameron for visits. Other than a couple of visits, appellant never sent a birthday or Christmas card.
The trial court stated: "I want to make the record clear that I do accept mother's testimony on all points. I find her testimony to be credible." The court denied appellant presumed father status, denied reunification services, and set the matter for a section 366.26 selection and implementation hearing.
Presumed Father Status
Appellant is an alleged father, which is an individual whose legal relationship with the child has not been established. (Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2010) § 2.57, p. 86.) The term "alleged father" refers to "[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.... [Citation.]" (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) A presumed father is entitled to reunification services, but not an alleged father or biological father. (In re Paul H. (2003) 111 Cal.App.4th 753, 760; In re Jerry P. (2002) 95 Cal.App.4th 793, 801.)
To achieve presumed father status, Family Code section 7611, subdivision (d) requires that appellant show that he received Cameron into his home and that he openly and publicly acknowledged paternity. (See In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.) It is a two prong test. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.)
Appellant argues that the first prong is satisfied because he lived with mother and Cameron in 2007. Appellant claimed it was six weeks but mother said it was six days. Appellant claimed that he paid for food, utilities, and clothing but mother denied it. On cross-examination, appellant admitted that the Kalani Village apartment was in his sister's name and he was just "living there." After the domestic violence incident, mother and Cameron took up residence elsewhere.
The trial court found: "[T]he record is clear that you only resided with the mother and child for an extremely brief period shortly after the child's birth. [¶] You weren't present at the hospital during the course of the child's birth. You've provided utterly no financial or other support to the child. There's no documentation of holding the child out as your own.... [¶] It's also clear from the information in the detention memorandum and jurisdiction memorandum, that as recently as the start of this case, you had reservations about whether you were the father and wanted the DNA test in order to prove it. I draw the inference... that that was because you wanted to avoid your obligations to pay child support. You never paid child support, you've never done anything to support the child. Never sent the child a birthday card, never sent the child a Christmas card, never provided anything to the child except what you claim to be a couple of small, fairly insignificant gifts. [¶] You never made any legitimate attempt to contact the child. Mother had told your relatives that visitation could be arranged through them; you never followed through with that. You never followed through with any of your parole or probation people to deal with the protective order if, in fact, a protective order exists. "
We review for abuse of discretion. (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1116.) The judgment is presumed correct and "we review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. [Citation.] We do not reweigh the evidence but instead examine the whole record to determine whether a reasonable trier of fact could have found for the respondent. [Citation.]" (In re Spencer W., supra, 48 Cal.App.4th at p. 1650.)
Appellant claims he is entitled to presumed parent status even if he lived with Cameron a few days. Family Code section 7611, subdivision (d) does not have a duration requirement. (See In re A.A., supra, 114 Cal.App.4th at p. 786[cohabitation for a period of one to three months is "exceedingly small" but section 7611, subdivision (d) does not suggest a durational requirement].) Mother testified that she and Cameron stayed at the apartment for less than a week and that appellant did not provide for Cameron, share parenting responsibilities, or even baby sit.
"The evidence here would permit a trier of fact to conclude that neither foundational element necessary to presumed father status was present. First, [appellant] was required to receive [Cameron] into his home. The evidence permitted the conclusion that [appellant] did not receive the child into his home" but was merely staying at his sister's apartment and acted out of personal convenience. (In re Spencer W., supra, 48 Cal.App.4th at p. 1653.) The living arrangement, whether it was six days or six weeks, lacked any parental commitment to receive Cameron into appellant's home and provide and care for Cameron.
Appellant's reliance on Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361 (disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527)is misplaced. There the alleged parent and birth mother (a same sex couple) shared an apartment for five years and shared parenting responsibilities for the first six weeks of the child's life. (Charisma R. v. Kristina S., 175 Cal.App.4th at p. 374.) The alleged parent cared for the child full time during the day for the next seven weeks. The birth mother (Kristina) referred to the apartment as " 'our common residence.' " (Id., at p. 375.) The evidence showed that the alleged parent welcomed the child "into her shared home with Kristina and consistently acknowledged her parental relationship and responsibilities to the child." (Id., at p. 377.)
That did not occur here. "[R]eceipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship...." (Id., at p. 374.) Appellant tried to resume his relationship with mother but there was no "unambiguous" receipt of Cameron into the home or acknowledgment by appellant of his parental relationship and responsibilities.
Nor did appellant openly and publicly admit paternity. (Fam. Code, § 7611, subd. (d); see Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.) Appellant may have told his sister and fiancée that he was Cameron's father but was unwilling to openly and publicly admit paternity when it might cost him. Appellant took no steps to put his name on the birth certificate or legally establish paternity and never paid support. There were no birthday cards or Christmas cards, not even a photograph of appellant and Cameron together.
In In re Sarah C. (1992) 8 Cal.App.4th 964, the biological father did practically nothing to develop a relationship with his daughter and was denied presumed father status. "[W]hile there was uncontroverted evidence indicating [father] acknowledged Sarah was his daughter to a few friends and to his family and that for a few months he cared for Sarah, there was also evidence indicating he never sought to have himself listed on Sarah's birth certificate as her father, ... and never completed any paperwork with the Navy to have Sarah named as a dependent or a beneficiary on any insurance. [¶] Other evidence tended to show [father] did not provide a home for Sarah. [Father] moved in with Sarah and her mother because he needed a place to stay. He lived with Sarah and Dawn for only a short period of time. He only once contributed any money to provide for a home (i.e., to pay for rent, food, etc.);... [Father] lived with Sarah in the same home for only a brief period of time and once arrested for bring absent without leave did not provide her with a home." (Id., at p. 972-973.)
Like In re Sarah C., appellant did not receive Cameron into his home or openly and publicly admit paternity. When the dependency petition was filed, appellant denied paternity and requested DNA testing. A few days later, appellant reversed his position and requested presumed father status and reunification services. Appellant was unemployed, lived in a homeless shelter, and claimed that he would have maintained a parental relationship with Cameron but for a no-contact order that was never introduced into evidence.
The trial court stated: "I have no idea what the court order says; I just have allusions to it." The court found that appellant "wants it three or four ways here. He wants to say, yes, I visited a number of times so that shows that I was holding the child out as my own, but I really couldn't visit anymore than that because of this protective order, but I didn't take any steps to see how I could deal with the protective order and still do visitation."
The trial court found that appellant has "not come close to what's required to carry the burden for proving that you've received the child in your home and openly held the child out as your natural child." We concur. Presumed father status is earned based on a commitment toward developing a "substantial familial relationship to the child." (In re Sarah C., supra, 8 Cal.App.4th at p. 975.) The statutory purpose of Family Code section 7611 is to distinguish between those fathers who have entered into a familial relationship with the mother and child and those who have not. (In re Sabrina H. (1990) 217 Cal.App.3d 702, 708.)
Conclusion
Appellant was not present when Cameron was born, briefly cohabitated with mother, provided no support or child care, and failed to publicly and openly hold the child out as his own. After Cameron was found wandering alone on a busy street, appellant denied paternity and requested DNA testing. Substantial evidence supports the finding that appellant is not entitled to presumed father status or reunification services. "Presumed fatherhood, for purposes of dependency proceedings, denotes one who 'promptly comes forward and demonstrates a full commitment to his paternal responsibilities – emotional, financial, and otherwise[.]'" (In re Jerry P., supra, 95 Cal.App.4th at pp. 801-802; see In re E.O. (2010) 182 Cal.App.4th 722, 728)
The judgment (order denying presumed father status and reunification services) is affirmed.
We concur: GILBERT, P.J., COFFEE, J.