Opinion
D041484. D041692.
7-22-2003
In re ELIZABETH H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LINCOLN H., Defendant and Appellant.
Lincoln H. appeals orders declaring his minor daughter Elizabeth H. a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (d) and removing Elizabeth from his custody under section 361, subdivision (c)(1). Lincoln contends: (1) the court violated his right to due process by denying him the opportunity to contest the jurisdictional allegations; (2) the court erred in denying him presumed father status at the jurisdiction hearing; and (3) the court should have continued the jurisdiction and disposition hearings because he received no notice. We affirm the orders.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
In light of our disposition, we decline the invitation of minors counsel to dismiss Lincolns appeal on the ground he has willfully absented himself from the jurisdiction of the trial and appellate courts and refuses to cooperate with the court or the San Diego County Health and Human Services Agency.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2002, the San Diego County Health and Human Services Agency (Agency) removed five-year-old Elizabeth from her parents home after Elizabeth and her mother, Evelia H., reported Lincoln had sexually molested Elizabeth. Evelia knew Lincoln had been molesting Elizabeth for several years. Elizabeth disclosed details of the molest. The findings from a physical examination were consistent with the history she reported and indicated sexual abuse was highly suspected.
Lincoln telephoned Agency from Ensenada, Mexico, and agreed to an interview at his home in Campo. He denied molesting Elizabeth and said he was concerned the social worker would have him arrested. When the social worker went to Lincolns home for the scheduled interview, he was not there. Evelia said he left the previous night and had not returned, presumably because he was afraid of being arrested. The social workers attempt to contact Lincoln was unavailing because Lincolns cellular telephone was turned off.
At a detention hearing, the court appointed counsel for Lincoln, who was not present. Evelia submitted a paternity inquiry form claiming Lincoln was Elizabeths biological father but admitted she was promiscuous around the time Elizabeth was conceived. She further stated she and Lincoln had married after Elizabeths birth, Lincoln was listed as Elizabeths father on her birth certificate, he had signed a declaration of paternity at the hospital, he supported Elizabeth with $ 50 per week and he lived with Elizabeth for four months. The court detained Elizabeth in foster care, deferred the issue of paternity and set a jurisdiction and disposition hearing. A copy of the petition was sent to Lincoln at the address he provided to the social worker.
Lincoln spoke to the social worker by telephone, stating he did not believe Elizabeth had been molested. He declined an in-person interview and asked if there was a warrant for his arrest. Lincoln was given notice of the jurisdiction and disposition hearing and said he would appear through counsel because he was concerned about being arrested.
At the jurisdiction and disposition hearing, Lincolns counsel asked the court to grant Lincoln presumed father status. She argued Lincoln and Evelia had married after Elizabeths birth, Lincoln lived with Elizabeth for a period of time and pays child support under a court order in Mexico, and he has held Elizabeth out as his child. The court denied Lincoln presumed father status without prejudice.
Following Evelias submission on the reports, the court sustained the allegations of the petition under section 300, subdivision (d). Lincolns counsel said she had advised him that he needed to come to court or return the paternity inquiry forms in order to have standing to contest the allegations regarding jurisdiction and the recommendations for disposition. The court removed Elizabeth from Evelias custody, placed her in foster care and ordered Evelia to participate in reunification services. The court ordered no contact with Lincoln.
At a special hearing several months later requested by Lincolns counsel, Lincoln submitted a paternity inquiry and offer of proof. Lincoln claimed he was listed as Elizabeths father on her passport and birth certificate, he signed a declaration of paternity, Elizabeth had lived with him on three occasions, he had visited her twice a week since she was born and he supported her. Lincoln also requested custody of Elizabeth. The court found Lincoln was Elizabeths presumed father, removed her from his custody and continued its no contact order.
In his paternity inquiry form, Lincoln claimed he may have Iroquois ancestry. Minors counsel has asked us to assure that the juvenile court and Agency take the necessary steps to notify the pertinent branches of the Iroquois Nation and the Bureau of Indian Affairs in compliance with the Indian Child Welfare Act. We have taken judicial notice of the juvenile court file in this case, including the status review report dated May 6, 2003. In that report, Agency states notice was sent to the seven nations of the Iroquois Tribe. Based on responses received, Agency concluded Elizabeth was not a member of the tribe nor eligible for membership. At a review hearing, the court expressly found the Indian Child Welfare Act did not apply. Thus, that issue has been resolved.
DISCUSSION
I
Lincoln contends the court violated his due process rights by denying him the opportunity to contest the jurisdictional allegations. He asserts his status as an alleged father should not have precluded him from challenging the petition.
A
An alleged father is a man who may be the biological father of a child but who has not achieved presumed father status or whose biological paternity has not been established. (In re Zacharia D . (1993) 6 Cal.4th 435, 449, fn. 15, 862 P.2d 751.) Once his identity has been ascertained, an alleged father is entitled to notice of the dependency proceedings and has the right to bring an action to establish his identity as a biological or presumed father. (§ 316.2, subd. (b); In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.)
In the dependency context, presumed fathers have greater rights than alleged or biological fathers, including entitlement to custody of their children and reunification services. (In re Zacharia D., supra, 6 Cal.4th at pp. 448-449, 451.) To become a presumed father, a man must qualify under one of several categories listed in Family Code section 7611 . (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595.) An alleged father has the burden of proving, by a preponderance of the evidence, he is a presumed father. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585-586; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.)
B
Here, Lincoln did not appear at the jurisdiction hearing but sought, through counsel, to contest the allegations of the petition and claimed he was Elizabeths presumed father. However, because Lincoln presented no evidence as to paternity, he remained an alleged father. As such, Lincoln had no "known current interest because his paternity [had] not yet been established." (In re Emily R . (2000) 80 Cal.App.4th 1344, 1352.) As his trial counsel correctly informed him, Lincoln could not litigate jurisdiction or disposition without establishing paternity. Lincolns inability to confront witnesses against him and test Agencys case was the result of his own failure to appear or provide evidence of his paternity status. Thus, no due process violation occurred.
II
Lincoln contends the court erred in denying him presumed father status at the jurisdiction hearing. He asserts the evidence showed he had married Elizabeths mother, was named on Elizabeths birth certificate with his consent and signed a declaration of paternity provided by the hospital, thus qualifying as a presumed father under Family Code section 7611, subdivision (c).
Family Code section 7611, subdivision (c) provides a man is a presumed father if, after the childs birth, he and the childs mother have married and, with his consent, he is named as the childs father on the childs birth certificate.
As we previously noted, Lincoln had the burden of proving he was a presumed father. (Glen C. v. Superior Court, supra, 78 Cal.App.4th at pp. 585-586.) "It was for the trier of fact to determine whether the foundational facts were established by a preponderance of evidence. [Citation.]" (In re Spencer W., supra, 48 Cal.App.4th at p. 1653.) Lincoln presented no evidence to support his request for presumed father status. Indeed, he refused to appear before the court to assert a position and failed to complete a paternity inquiry form. Although his counsel argued Lincoln qualified as a presumed father, statements of counsel are not evidence. (In re Heather H. (1988) 200 Cal. App. 3d 91, 95, 246 Cal. Rptr. 38; People v. Superior Court (Crook) (1978) 83 Cal. App. 3d 335, 341, 147 Cal. Rptr. 856.) Lincoln offered no documentation, such as Elizabeths birth certificate or the paternity declaration he claimed to have signed when she was born, to support his argument he was Elizabeths presumed father.
Lincoln asserts he established presumed father status through Evelias paternity inquiry form. However, the information on that form was insufficient and inconclusive as to whether Lincoln was a presumed father, especially where Lincoln offered no evidence of his own. Whether a paternity declaration existed and was properly executed was a factual determination which was critical to a finding of presumed father status but which the court was unable to resolve. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Stephanie M . (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The court properly declined to recognize Lincoln as a presumed father at the jurisdiction hearing.
III
Lincoln contends the court erred in failing to continue the jurisdiction and disposition hearings to allow him to receive proper notice and to permit counsel to properly prepare for those hearings.
Lincoln was represented by counsel at all stages of the proceedings. The record shows a copy of the petition was mailed to Lincoln and he discussed the matter with the social worker and his attorney. Lincoln chose to flee to Mexico and participate in the proceedings through counsel, despite knowing he needed to establish paternity promptly in order to challenge the jurisdictional allegations. Further, nothing in the record supports Lincolns claim counsel was not properly prepared. Counsel appeared on behalf of Lincoln and argued he was entitled to presumed father status. There were no grounds for the court to continue the hearings. (In re Ninfa S., supra, 62 Cal.App.4th at pp. 810-811 [continuances are discouraged and may be granted only on showing of good cause where not contrary to minors best interests]; cf. In re C. P. (1985) 165 Cal. App. 3d 270, 273 [continuance of jurisdiction hearing required where father had no opportunity to speak to counsel]; In re Brendan P. (1986) 184 Cal. App. 3d 910, 916, 230 Cal. Rptr. 720 [continuance warranted where attorney was unfamiliar with juvenile court proceedings and had no notice of the hearing].)
Lincoln further contends that once he was granted presumed father status, the court should have given him proper notice and an opportunity to be heard on the issue of Elizabeths disposition. However, as we previously discussed, Lincoln was represented by counsel who set the matter for a special hearing at which she presented evidence of Lincolns presumed father status. Once Lincoln achieved presumed father status, counsel requested Elizabeth be placed with Lincoln. Based on the evidence before it, the court found there was a substantial risk to Elizabeth if she were returned to his custody. No evidentiary hearing was requested nor was one required.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.