Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Stanislaus County No. 515837. Ann Q. Ameral.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel and Carrie M. Stephens, Deputy County Counsel for Plaintiff and Respondent.
OPINION
Before Kane, Acting P.J., Poochigian, J. and Detjen, J.
T.M. (father) appeals from the juvenile court’s order denying his Welfare and Institutions Code section 388 petition seeking presumed father status and reunification services as to his infant daughter E.T. He contends the juvenile court abused its discretion in denying his section 388 petition. We will affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In order to protect the privacy of the minor, we refer to individuals with unique names by their initials. (Cal. Rules of Court, rule 8.401(a)(2).)
STATEMENT OF THE CASE AND FACTS
Appellant is the biological father of E.T. who was detained at birth in August 2010 because she and her mother, K.T., tested positive for marijuana. In addition, K.T. was not prepared to care for E.T. She did not have layette items or housing and did not have a plan as to how she would provide for E.T. At the time of E.T.’s detention, appellant was incarcerated in Nebraska and expected to be released from custody in April 2011. Appellant and K.T. are not married and he did not sign a declaration of paternity as to E.T.
The Stanislaus County Community Services Agency (agency) filed an original dependency petition pursuant to section 300 on E.T.’s behalf, identifying appellant as her alleged father. The juvenile court ordered E.T. detained pursuant to the petition. At separate hearings in October 2010, the court ordered paternity testing for appellant, adjudged E.T. a dependent of the court and ordered reunification services for K.T. The court also denied appellant reunification services pursuant to subdivisions (a) and (e)(1) of section 361.5, respectively, because appellant was then an alleged father and not entitled to them and because appellant was incarcerated and services would not benefit E.T. The court set the six-month review hearing as to K.T. for April 2011.
In December 2010, the juvenile court deemed appellant to be E.T.’s biological father based on the paternity test results. The court also set a hearing in January 2011, to rule on a section 388 petition that appellant’s attorney advised he would be filing.
Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.
In the section 388 petition, appellant asked the juvenile court to find that he is E.T.’s presumed father and to order reunification services. He appended a letter from the Nebraska Department of Correctional Services identifying programs in which he was participating or scheduled to participate. He also stated that E.T. would probably have a relationship with him and would benefit “from a good relationship with a father who has overcome his difficulties.”
In opposition, the agency reported that appellant has an extensive criminal history in Nebraska beginning in 1993 when he was sentenced to 18 months in prison for theft. In 1997, he was sentenced to four years and six months for robbery, theft by receiving stolen property and operating a vehicle to avoid arrest. In 2007, he was sentenced to 21 months in prison for possession of cocaine with the intent to deliver it and, in 2010, he was sentenced to 11 months for operating a motor vehicle to avoid arrest. As a result of his incarceration, appellant had never seen E.T. The agency was dubious that appellant would be able to remain out of custody long enough to parent E.T.
In February 2011, the juvenile court conducted a contested hearing on the section 388 petition. Appellant appeared by telephone from his place of incarceration. He testified he was released from prison in June of 2009, after serving time for possession with intent to deliver cocaine. He was out of custody for approximately six months when, in January 2010, he was incarcerated for felony flight to avoid arrest on a speeding ticket. In December 2009, K.T. told him she was pregnant. He said he gave K.T. money for a brief period while he was out of custody and sent her money while he was incarcerated. He was on the telephone with K.T. during labor and when E.T. was born and afterward sent money and clothes for E.T.
Appellant further testified that he participated in substance abuse classes and counseling and was in classes where he learned parenting techniques and life skills and gained insight into his criminal and addictive behaviors. In addition, he learned that he has a good work ethic and achieved success in various jobs he held such as insurance claims agent, telephone sales representative, and telemarketer. Appellant stated he planned to live in California after his release where he had a job prospect and where K.T. was looking for an apartment for them. He could not say, however, whether he would separate himself from K.T. if necessary to reunify with E.T. Under cross-examination by minor’s counsel, appellant acknowledged that he spent most of the preceding 10 years incarcerated and that during that time he participated in counseling and substance abuse programs.
Following argument, the juvenile court took the matter under submission. The court subsequently issued its decision denying appellant’s section 388 petition. This appeal ensued.
DISCUSSION
I. Presumed Father
Appellant contends the juvenile court erroneously denied him presumed father status pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). On appeal, we review the juvenile court's determination of presumed father status under the substantial evidence standard. (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 368-369 (Charisma R.).) In so doing, “‘[w]e 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.]’” (Id. at p. 369.)
In dependency proceedings, attainment of presumed father status has significant implications because the presumed father is accorded the greatest paternity rights, vis-à-vis the dependent child. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) As relevant to this case, it entitles him to reunification services. (§ 361.5, subd. (a).) Conversely, a biological father is not entitled to reunification services. (Ibid.) Nevertheless, the juvenile court may order services for the biological father if it determines that services will benefit the child. (Ibid.)
Family Code section 7611 sets forth the presumptions under which a man may be declared a presumed father. In order for an unwed biological father such as appellant to attain presumed father status under the statute, he must demonstrate that he received the child into his home and held the child out as his natural child. (Fam. Code, § 7611, subd. (d).) Appellant does not claim presumed father status under Family Code section 7611. Rather, he claims he qualifies as E.T.’s presumed father under the holding of Kelsey S.
In Kelsey S., the California Supreme Court examined the constitutionality of Family Code section 7004, subdivision (a), now Family Code section 7611, subdivision (d), insofar as it related to an unwed biological father's attempt to attain presumed father status. (Kelsey S., supra, 1 Cal.4th at pp. 849-850.) The biological father in that case sought custody of his child as soon as the child was born but was prevented from doing so by the mother. (Id. at p. 832.) The court held that the statute violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statute allows a mother to unilaterally preclude her child's biological father from becoming a presumed father. (Id. at p. 849.) The court stated:
“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.” (Ibid.)
In determining whether a biological father merits presumed father status under Kelsey S., the juvenile court must consider his conduct before and after the child's birth. (Kelsey S., supra, 1 Cal.4th at p. 849.) Once he 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.” (Ibid.) “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.” (Ibid.) If an unwed father fails to demonstrate a full commitment to his parental responsibilities, the statute is constitutionally sufficient as applied to him. (Id. at pp. 849-850.)
In its statement of decision, the juvenile court in this case acknowledged that appellant provided K.T. some financial support (“albeit the extent of which was not quantified”) but found it insufficient to render him E.T.’s presumed father under Kelsey S. Moreover, the court determined that appellant prevented himself from meeting the criteria for Kelsey S. rights by violating the law. To that end, the court cited Adoption of O.M. (2008) 169 Cal.App.4th 672 (O.M.).
In O.M., an unwed biological father with a lengthy criminal history was incarcerated approximately a week after learning that his child’s mother was pregnant. (O.M., supra, 169 Cal.App.4th at pp. 675-676.) During his four-month incarceration, he did not provide the mother any material support. (Id. at p. 676.) Upon his release, the mother avoided contact with the father and his efforts to reach her were unsuccessful. (Ibid.) Meanwhile, the mother arranged to adopt the child but falsely told the prospective adoptive parents that the child was the result of a one-night stand and she was not in contact with the father. (Ibid.) When the father discovered the mother’s plan to adopt the child, he sought legal advice but was arrested the day before his appointment with the attorney. (Id. at p. 677.) A month later, the mother delivered the child and relinquished him to the adoptive couple. (Ibid.) The father was sentenced to 12 years in prison but objected to the adoption proceedings. (Ibid.) Following a hearing on the matter, the trial court determined the father was not a Kelsey S. father, terminated his parental rights and granted the adoption. (Id. at p. 678.)
On appeal, the father in O.M. argued that the mother prevented him from acquiring Kelsey S. status by refusing to see him. (O.M., supra, 169 Cal.App.4th at p. 680.) However, the O.M. court found that the father’s inability to qualify for Kelsey S. rights was more the result of his own actions in violating the law than the mother’s refusal to communicate with him. (Id. at p. 681.) The court stated:
“[T]he rationale underlying the Kelsey S. requirements, and particularly the need for timely provision to unwed mothers of ‘emotional, financial, medical, or other assistance during pregnancy’ [Citation] militates against affording Kelsey S. rights to a biological father who has precluded himself from even attempting to provide such support, through his own voluntary involvement in criminal behavior.” (Ibid.)
Appellant in this case contends he demonstrated the parental commitment envisioned by Kelsey S. in multiple ways. He promptly acknowledged his paternity and provided K.T. financial support during and after her pregnancy. In addition, he emotionally supported her during her pregnancy and labor and committed to marrying her and providing for the family. Once dependency proceedings were initiated, he promptly sought to elevate his paternity status, maintained contact with the agency and K.T., participated in the hearings, kept apprised of E.T.’s wellbeing and provided input as to her placement. He also participated in programs to better himself as a person and as a parent.
Appellant further contends that, unlike the father in O.M., he was not indifferent to the needs of his child and child’s mother and endeavored to provide financial and emotional support. Therefore, he contends O.M. is distinguishable on its facts and inapplicable to him.
We concur that O.M. is factually distinguishable in a very significant way. In O.M., the mother avoided contact with the father and arranged to adopt their child without consulting him and revealing the nature of their relationship. As such, her action was akin to that of the mother in Kelsey S. which prevented the biological father from becoming a presumed father. However, the O.M. court concluded that, on balance, the father’s inability to demonstrate a full commitment to his parental responsibilities was a result of his conduct rather than any effort on the part of the mother to deprive him of his son. Therefore, he was not entitled to presumed father status under Kelsey S.
In this case, K.T. made no effort to prevent appellant from asserting his parental rights, vis-à-vis E.T. Therefore, the juvenile court was not faced with the scenario presented in O.M. and appellant correctly argues that its holding is inapplicable here.
Indeed, the only issue with respect to appellant’s paternity was and is whether he made the kind of full parental commitment under Kelsey S. such that to deny him presumed father status would be unconstitutional. We concur with the juvenile court that he did not. In December 2009, appellant discovered that K.T. was pregnant yet he violated the law and was incarcerated a month later. While incarcerated, he provided K.T. some financial support. However, according to the evidence, it was not sufficient because K.T. could not provide E.T. even basic necessities such as housing and supplies. Substantial evidence is evidence that is “‘of “‘ponderable legal significance, ’” “‘reasonable in nature, credible, and of solid value.…’” [Citations.]’ [Citation.]” (Charisma R., supra, 175 Cal.App.4th at pp. 368-369.) We determine whether “there is any substantial evidence” to support the judgment. (Id. at p. 369.) On this record, we conclude based on the reasoning above that substantial evidence supports the juvenile court’s finding that appellant is not E.T.’s presumed father pursuant to Kelsey S.
II. Reunification Services
Appellant contends the juvenile court erroneously denied him reunification services pursuant to sections 361.5, subdivision (e)(1) and 388. His contention with respect to section 361.5, subdivision (e)(1) is premised on legally recognizing him as E.T.’s presumed father which we have concluded he is not. His contention with respect to section 388 lacks merit.
A. Section 361.5, subdivision (e)(1)
When a child is removed from parental custody at the dispositional hearing, the juvenile court is required, as a general rule, to order reunification services for the child’s presumed father pursuant to subdivision (a) of section 361.5 (subdivision (a)). If the presumed father is incarcerated, subdivision (e)(1) of section 361.5 (subdivision (e)(1)) requires that the court order services unless the court determines services would be detrimental to the child. In the case of a biological father, the court may order reunification services pursuant to subdivision (a) if it determines that services will benefit the child. An alleged father is not entitled to services under the statute.
At the dispositional hearing in October 2010, the juvenile court denied appellant reunification services under subdivision (a) because he was E.T.’s alleged father and not entitled to them. For reasons unexplained in the record, the court also denied appellant reunification services under subdivision (e)(1) even though he was not E.T.’s presumed father.
Appellant contends that the juvenile court’s denial of services order pursuant to subdivision (e)(1), though inapplicable at the dispositional phase, formed the basis for its denial of services on the section 388 petition. Because subdivision (e)(1) applies to the presumed father, he further contends, the court implicitly found that he is E.T.’s presumed father. Additionally, he contends the juvenile court misapplied subdivision (e)(1) in adjudicating his section 388 petition.
Suffice it to say that appellant is not E.T.’s presumed father as previously discussed. Therefore, subdivision (e)(1) does not apply to him. Further, the juvenile court denied appellant reunification services pursuant to section 388, having found services would not serve E.T.’s best interests.
B. Section 388
Appellant contends the juvenile court abused its discretion in denying his section 388 petition. We disagree.
A parent seeking a modification under section 388 must show circumstances have changed or new evidence obtained such that the proposed change would promote the best interest of the child. (§ 388, subds. (a) & (d).) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
In this case, the juvenile court found changed circumstances in appellant’s newly established biological paternity. However, the court determined that reunification services would not serve E.T.’s best interest. We concur, given the absence of a parent/child relationship and appellant’s criminal propensity. Accordingly, we find no abuse of discretion in the juvenile court’s decision that reunification services would not serve E.T.’s best interest and its order denying appellant’s section 388 petition.
DISPOSITION
The judgment is affirmed.