Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK75497, Randolph Hammock and Valerie Skeba, Juvenile Court Referees. Milton Simon, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Senior Associate County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
I.M. appeals from the judgment of April 28, 2009, declaring C. a dependent of the court under Welfare and Institutions Code section 360. I. contends it was an abuse of discretion to deny his request for presumed father status and to find he did not qualify as a father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). We hold substantial evidence supports the dependency court order denying the request for presumed father status. We further hold that I.’s contention he qualified as C.’s father under Kelsey S. was forfeited by his failure to object on that ground in the dependency court. Accordingly, we affirm the judgment.
Hereinafter, all statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
C. was born in early 2007 to mother, who was 14 years old. C. was not detained at that time, but mother was declared a dependent of the court and placed in foster care. C. resided with mother in mother’s foster placement. Mother regularly attended school and took C. with her to daycare provided by the school. On November 26, 2008, mother ran away from the foster home, leaving C. behind without a plan for C.’s ongoing care and supervision, and never returned. On December 2, 2008, the Department of Children and Family Services (the Department) detained C. and filed a section 300 petition. After C. was detained, I., who was 22 years old, contacted C.’s social worker and stated he was C.’s father and wanted visitation.
Mother never appeared in the dependency proceedings or revealed her whereabouts.
Mother’s foster mother stated I. was a boyfriend of mother and that someone else, a man from Los Angeles, was C.’s father. Mother and I. had a turbulent relationship, which included domestic violence. Mother was the aggressor. I. told the foster mother that “he is very much in love with mother and would do anything for mother.” On the day mother ran away from her foster placement, she had an argument with I. in the street. Mother left C. in the street with I. and ran off. I. pursued mother, leaving C. behind in the street. C. was almost hit by a car. Then I. returned and brought C. home to the foster mother.
This man was not further identified and was never located.
In an interview with the social worker before she ran away, mother denied I. was her boyfriend. He was just an acquaintance, someone who would pay her cell phone bill.
When I. appeared on January 26, 2009, at the pretrial resolution conference, he asked the dependency court to enter a judgment of parentage. The dependency court questioned him on the issue of whether he was the presumed father. He told the court his name was not on the birth certificate, but he believed he was the biological father because he had sex with mother prior to conception. In the JV-505 Statement Regarding Parentage, I. stated he took care of C. in his home when mother was in school, told “everyone” C. was his child, and provided money and other items for C. He told the dependency court he believed C. was his child and has been looking for the child since she was detained. The dependency court found I. was an alleged father at that time, ordered I. to participate in paternity testing, and ordered the social worker to investigate whether I. was the presumed father. The dependency court stated: “Even if he were not the biological father, he could still establish himself to be the presumed father.”
I. had previously admitted to the social worker that he did not meet mother until she was three months pregnant and was not C.’s father.
At the earliest hearing practicable, the dependency court must inquire as to biological paternity and whether any man qualifies as a presumed father under Family Code section 7611. (§ 316.2, subd. (a).) “The juvenile court has a duty to inquire about and, if not otherwise determined, to attempt to determine the parentage of each child who is the subject of a [section 300] petition[.]” (Cal. Rules of Court, rule 5.635(a).) “To determine parentage, the juvenile court may order the child and any alleged parents to submit to genetic tests[.]” (Id., rule 5.635(e)(2).)
I. told the social worker who was investigating paternity the following. I. worked two jobs when mother gave birth and at the time of the dependency proceedings. He met mother after she became pregnant, and they lived together for two or three months before the baby was born but did not marry. Mother moved out toward the end of the pregnancy and lived with other friends. The Department detained mother and placed her in foster care at C.’s birth. While I. did not sign paternity papers at the hospital when C. was born, he introduced himself to the nursing staff as the father. I. rented a room in an apartment near mother’s foster home. He visited mother frequently in her foster home. When asked if he held himself out as the father and accepted C. openly in his home, I. stated: “I have always felt like C.’s father. I have known C. prior to her birth and established a relationship with C. after she was born. I would be willing to accept C. into my household as my [child].” I. babysat for C. when mother did not want to leave her in the school day care. C. called him “Daddy” and was comfortable and affectionate with him. When mother was in foster care, I. went out with mother and C. during the day. He maintained an ongoing sexual relationship with mother, even though he knew she was underage. Mother asked him to buy her things and spend money on her; he did everything to please her. I. bought baby clothes and toys and gave money to mother for the baby during and after the pregnancy. However, she cheated on him and ran up very large cell phone bills on the cell phone he provided her. When mother ran away from foster care, she told I. she would leave C. in his care. In the Statement Regarding Parentage, filed on March 9, 2009, I. stated he had told his friends, coworkers, and everyone that C. was his child.
Mother’s foster mother told the social worker the following. I.’s “main focus was dating [mother].” He seemed to be obsessed with mother. I. told the foster mother he has a young child in Mexico who he does not see or provide for. The foster mother told I. again and again to stop focusing on C. and start focusing on his responsibilities to his biological child. The foster mother thought that the reason I. had an interest in C. is that, prior to running away, mother asked him to take care of C. if she left placement. The foster mother believed that I. hoped mother would return to him if he had her child. Previously, mother treated I. badly and was involved with other boys, but I. always took her back. I. often told the foster mother how much he loved mother. The foster mother never heard C. call I. “daddy.” I. was working two jobs.
When paternity testing revealed that I. was not the biological father, the dependency court asked I. if he wanted to be found to be the presumed father. I. said he did, and the dependency court set a hearing to address whether or not I. was the presumed father. The hearing was held on March 13, 2009. C. and the Department opposed I.’s request for presumed father status. I. made an offer of proof that he would testify that he had no other children and stopped having a sexual relationship with mother when he learned she was a minor. His counsel argued that I. participated in prenatal care, provided for the baby after the child was born, and baby-sat when mother needed extra help with the child. Counsel told the court I. “had the child into his home on occasion to baby-sit, and play and take care of the child. The child has not lived with him.” The dependency court stated that whether I. is the presumed father is “a question of law. The facts are here. Based on the facts does he rise to the level of a presumed father. We know that he’s not the biological father, but do all of these facts, when taken in the totality of the circumstances would he rise to the presumed father status.” The dependency court found I. lied when he stated he was the biological father and did not submit evidence to corroborate his assertion that he provided financial support. The foster mother’s evidence challenged I.’s credibility. The dependency court found I. was not C.’s presumed, alleged, or biological father and, accordingly, ruled he was no longer a party to the case.
On April 3, 2009, I. filed a notice of appeal of the order denying him presumed father status.
On March 30, 3009, the allegations of the petition against mother and the unknown father were sustained, and the matter continued for a dispositional hearing. On April 28, 2009, C. was declared a dependent of the court, custody was taken from the parents, no reunification services were ordered pursuant to section 361.5, subdivision (b)(1), and the matter was continued for a section 366.21, subdivision (e) (six-month review) hearing.
Pursuant to section 361.5, subdivision (d), “If reunification services are not ordered pursuant to paragraph (1) of subdivision (b) and the whereabouts of a parent become known within six months of the out-of-home placement of the child, the court shall order the social worker to provide family reunification services in accordance with this subdivision.”
On June 10, 2009, I. filed a supplemental notice of appeal of the April 28, 2009 judgment. On June 11, 2009, this court granted I.’s request that the April 3, 2009 notice of appeal be deemed to have been filed immediately after the judgment on April 28, 2009, and ruled that both appeals would be considered under the same case number.
DISCUSSION
Presumed Father Status
I. contends the denial of his request for presumed father status was an abuse of discretion. Under the applicable standard of review, we conclude the dependency court did not err in finding that I. did not qualify as a presumed father, because substantial evidence supports the finding.
“We review a lower court’s determination of presumed father status for substantial evidence.” (In re Salvador M. (2003) 111 Cal.App.4th 1353, 1358.) In determining whether substantial evidence supports a finding or order, “we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) “‘[W]e must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment. [Citations.]’ [Citation.]” (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 369.)
“In order to become a presumed father, a man must fall within one of several categories enumerated in Civil Code section 7004, subdivision (a). The only relevant category in this case is [Civil Code] section 7004, subdivision (a)(4), which provides that a natural father may become a presumed father if ‘[h]e receives the child into his home and openly holds out the child as his natural child.’ [Citations.]” (In re Zacharia D. (1993) 6 Cal.4th 435, 449.) A man may be a presumed father without being the biological father. (In re Nicholas H. (2002) 28 Cal.4th 56, 62-63.) To satisfy Family Code section 7611, subdivision (d), “receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship[.]” (Charisma R. v. Kristina S., supra, 175 Cal.App.4th at p. 374.) “One who claims he is entitled to presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement.” (In re T.R. (2005) 132 Cal.App.4th 1202, 1210.)
Civil Code section 7004, subdivision (a), has been recodified in Family Code section 7611 without substantive change.
Civil Code section 7004, subdivision (d), is now Family Code section 7611, subdivision (d): “ A man is presumed to be the natural father of a child if.... [¶]... [¶] (d) He receives the child into his home and openly holds out the child as his natural child.”
“In determining whether a man has ‘receiv[ed a] child into his home and openly h[eld] out the child’ as his own ([Fam. Code,] § 7611, subd. (d)), courts have looked to such factors as whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental. [Citations.]” (In re T.R., supra, 132 Cal.App.4th at p. 1211.)
Substantial evidence supports findings under Family Code section 7611, subdivision (d), that I. did not receive C. into his home and openly hold her out as his child. On the issue of whether I. took C. into his home, I. admitted he did not take C. into his home to live and only had the child in his home on occasion to babysit. Mother regularly attended school. C. was in daycare while mother was in class. I. was employed in two jobs. It is reasonable to infer from these facts that I. did nothing more than provide occasional, incidental babysitting, if any. On the issue of whether I. held C. out as his child, I. was never under any misapprehension that he was C.’s father, I.’s name is not on C.’s birth certificate, and I. did not sign a declaration of paternity at the hospital. Mother was not living in I.’s home before she gave birth. During the first 22 months of C.’s life before C. was detained by the Department, I. did not bring C. into his home to live, seek custody, or provide C.’s home (mother’s foster home) with financial support for C. The facts that the foster mother identified another man as C.’s father and mother viewed I. as a mere acquaintance indicate I. did not hold himself out as C.’s father. I. told the dependency court he held C. out as his child and provided support for C., but the dependency court did not find I. credible. I.’s statement that he would be willing to accept C. into his home as his child is an acknowledgment that he had not previously taken C. into his home and held that C. was his child. Finally, the facts I. was obsessed with mother and left one-year-old C. alone in the street while he ran after mother indicate I.’s interest in being designated C.’s presumed father was based more on a desire to date mother than on a commitment to parental responsibilities. (See In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)
The foregoing is substantial evidence supporting the conclusion that I. was at most a casual babysitter and, as such, did not satisfy the requirements for presumed father status under Family Code section 7611, subdivision (d).
I.’s contention mother left C. with him in his home every day, all day, when she went to school misrepresents the record. To the extent the evidence in the record is conflicting, I.’s contention is nothing more than a request that we reweigh the evidence. This we will not do. (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.)
I.’s argument that the dependency court denied his request for presumed father status because he is not the biological father mischaracterizes the record. The dependency court has a duty to determine parentage, including by means of paternity testing if appropriate. (E.g., § 316.2; Cal. Rules of Court, rules 5.635(a) and rule 5.635(e)(2); In re Vincent M. (2008) 161 Cal.App.4th 943, 959 [“The dependency court has a duty to determine the parentage of a child when a man appears at a hearing requesting a paternity finding.”].) The dependency court indicated that, on a sufficient factual record, I. could be found to be the presumed father even though he is not the biological father.
In sum, as substantial evidence supports the finding that I. did not qualify as a presumed father under Family Code, section 7611, subdivision (d), the dependency court did not err in denying I. presumed father status.
Kelsey S.
I. contends the dependency court abused its discretion in failing to find he was a Kelsey S. father. I. postulates that being a Kelsey S. father would give him the right to reunification services.
“The Supreme Court [in Kelsey S.] held that Civil Code former ‘“section 7004, subdivision (a) and the related statutory scheme violates 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.) Under such circumstances, “[i]f 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.” (Ibid.)’ ([In re] Zacharia D., supra, 6 Cal.4th at p. 450.) ‘In determining whether a biological father has demonstrated such a commitment, “[t]he 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....” ([Kelsey S.], supra, 1 Cal.4th at p. 849].)’ ([In re] Zacharia D., supra, 6 Cal.4th at p. 450, fn. 19.) ‘In “emphasiz[ing] the narrowness of our decision,” we stated that 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....” ([Kelsey S.], supra, 1 Cal.4th at pp. 849-850, italics in original.)’ ([In re] Zacharia D., supra, 6 Cal.4th at p. 450.)” (In re Vincent M., supra, 161 Cal.App.4th at pp. 957-958.)
“The father in Kelsey S. demonstrated a full commitment to the child during the pregnancy by expressin his desire to raise the child, and two days after the child was born, by filing an action to establish his parental relationship and obtain custody. (Kelsey S., supra, 1 Cal.4th at p. 822.)” (In re Vincent M., supra, 161 Cal.App.4th at p. 958, fn. 14.)
“The Supreme Court in Kelsey S. did not hold that the unwed father, who promptly came forward early in the proceeding to demonstrate a full commitment to his parental responsibilities but who was prevented from receiving the child into his home by the mother’s action, was a presumed father under Family Code section 7611 under the doctrine of constructive receipt. (See Kelsey S., supra, 1 Cal.4th at pp. 825-830, 842.) Nor did the Supreme Court hold under any theory that such a father had presumed father status.” (In re Vincent M., supra, 161 Cal.App.4th at p. 957.)
I. did not ask the dependency court to be considered a father under Kelsey S. or object when the dependency court did not consider him a father under Kelsey S. The Department contends I. forfeited the contention by failing to raise the issue in the dependency court. We agree the contention was forfeited. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582 [the contention the dependency court erred in failing to find man was a Kelsey S. father was forfeited]; see also In re S.B. (2004) 32 Cal.4th 1287, 1293 [“a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court”].) As a Kelsey S. father is not a presumed father, I.’s request for presumed father status did not encompass a request for Kelsey S. status. (In re Vincent M., supra, 161 Cal.App.4th at p. 957; In re Elijah V., supra, 127 Cal.App.4th at p. 582.) Because “there is some overlap in the factors used to establish a man as a presumed father under that section and to establish a man as a father within the meaning of Kelsey S.... a party seeking status as a father under Kelsey S. must be clear he wants to be so declared.” (In re Elijah V., supra, 127 Cal.App.4th at p. 582.) Accordingly, since I. did not raise the issue below, we do not decide it on appeal.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.