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In re Girl T.

California Court of Appeals, Fifth District
Apr 2, 2009
No. F055571 (Cal. Ct. App. Apr. 2, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. JD117123, Robert J. Anspach, Judge.

Cathy Iles Reading and Maureen L. Keaney, under appointments by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

DAWSON, J.

R. S. (appellant) appeals from an order of the juvenile court denying his request for a declaration of presumed father status and reunification services in the dependency proceedings of Baby Girl T. We conclude that appellant was not entitled to presumed father status and, therefore, not entitled to reunification services. We affirm the judgment.

PROCEDURAL AND FACTUAL HISTORY

Baby Girl T. was born in February of 2008 at appellant’s home. The mother gave birth to the baby while on the toilet. As a result, the baby suffered fluid in her lungs and had a body temperature of 88 degrees when she arrived at the hospital an hour after her birth. The mother tested positive for methamphetamine at the time of the baby’s birth. The mother claimed not to know that she was pregnant, although this was her fourth pregnancy. The mother identified R.V. as the baby’s father, but she had not spoken to him since she became pregnant. She identified appellant as her boyfriend. The mother suffered from bipolar disorder but had stopped taking her medication two years before. She no longer had custody of her other three children.

The social worker contacted appellant at his home several days after the baby’s birth. The home was next to appellant’s family’s automotive business and the home was used as storage for automotive parts. There was a single bed and a bassinet on one side of the room, but there were no baby clothes or diapers in the home. Although the bathroom was clean, the kitchen sink was not working and the utility sink was filled with dirty dishes.

Appellant acknowledged that he suspected the mother was using drugs. He also suspected that the mother was pregnant because she had morning sickness, but he was not sure who the father was.

A week after the baby was born, the mother was incarcerated for a parole violation. A hold was placed on the baby at the hospital. The mother was subsequently interviewed in jail. She acknowledged that she tested positive for methamphetamine at the time of the baby’s birth and that she had used methamphetamine five times during the last year, three times during the pregnancy. The mother then named appellant as the alleged father of the baby.

Kern County Department of Human Services (the Department) filed a dependency petition, pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g), alleging that Baby Girl T. was at risk of harm because of the mother’s failure to protect her or care for her and because the child was left without provision for support.

All further statutory references are to the Welfare and Institutions Code.

At the detention hearing, the mother’s counsel made an offer of proof that, if the mother were to testify, she would state that she was not having an exclusive sexual relationship with appellant, but was also having a relationship with R.V., and that “[e]ither one … could be the father of this child.”

Appellant was present with counsel. He indicated a desire to maintain a relationship with the mother and the baby. Pursuant to appellant’s request, the court ordered DNA testing. Appellant stated that he had been living with the mother for about two years and had provided for her. The dependency court ordered the child detained from her mother and provided appellant with a single one-hour visit with the baby.

The jurisdiction hearing was held on April 8, 2008. Appellant was present with counsel and, while DNA testing was not yet complete, stated that he wished to be the baby’s father, “regardless of paternity.” The dependency court found that reasonable, but unsuccessful, efforts had been made to locate the alleged father, R.V., and it found the allegations of the petition to be true.

At the disposition hearing held May 9, 2008, the court stated that it had received the DNA results, which showed that appellant was not the baby’s biological father. The court indicated that it intended to dismiss appellant from the proceedings. Appellant’s counsel objected, stating that appellant wanted to be elevated to presumed father status and requested placement and services for the child.

The Department objected to appellant’s request, stating appellant could not be the presumed father because he had not lived with the child and did not sign a declaration of paternity at the hospital. Appellant testified that he and the mother “have seen each other” since Christmas of 2004, they lived together for nine months prior to the birth of the baby, and he had been supporting her. Appellant also testified that he did not know the mother was pregnant until she gave birth. According to appellant, he woke up “to a baby crying” and found the mother with the baby. After the baby was born, the mother delivered the afterbirth and appellant then took the mother and the baby to the hospital. Appellant claimed he was never given the opportunity to sign a voluntary declaration of paternity at the hospital and no one there asked him his status with regard to the child. Appellant testified that he was allowed to visit the baby on four occasions. Appellant explained that his desire was to be the baby’s legal father because he and the mother planned to be together as soon as she got out of jail. Appellant stated that he loved the baby and offered into evidence a photograph taken of himself with her. The court deferred the question of appellant’s status until the issue was further briefed.

At the subsequent hearing, the dependency court denied appellant’s request to be elevated to presumed father status. The court stated that appellant did not know the mother was pregnant while they were living together “and as such there would be no holding out during that course of the pregnancy.” Although appellant’s counsel argued that the baby had come into appellant’s home, the court found that the short time between birth and the hospital was not “significant enough to say that.”

DISCUSSION

1. Presumed Father Status

Appellant argues that the dependency court erred in finding that he was not a presumed father. We disagree.

Dependency law recognizes four types of fathers: biological, alleged, de facto and presumed. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15; In re Jerry P. (2002) 95 Cal.App.4th 793, 801; In re Crystal J. (2001) 92 Cal.App.4th 186, 190.) A father’s status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.) “Presumed father status ranks highest.” (In re Jerry P. supra, at p. 801.)

A biological father is one whose paternity of the child has been established but who has not established that he qualifies as the child’s presumed father. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. (Ibid.) An alleged father has fewer rights than biological and presumed fathers because his paternity has not been established, and he does not have a current interest in the child. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) But an alleged father does have the opportunity to appear and assert a position, including his paternal status. (Id. at p. 1408.) A man, such as a stepfather, who has assumed the role of parent, is a “de facto father.” (In re Jerry P., supra, 95 Cal.App.4th at p. 801.)

A presumed father is a man who meets one or more statutorily specified criteria under Family Code section 7611. That section provides several different scenarios under which a man may achieve presumed father status: whether the man and the child’s mother are married to each other; whether the man and the child’s mother attempted to marry before the child’s birth; whether the man and the child’s mother married after the child’s birth; and whether the man received the child into his home and openly held out the child as his natural child. (Fam. Code, § 7611, subds. (a)-(d); see also In re Liam L. (2000) 84 Cal.App.4th 739, 745.) Only a “statutorily presumed” father has a right of custody and a right of reunification services as necessary to regain custody of a dependent child. (In re Zacharia D., supra, 6 Cal.4th at p. 451.)

The purpose of Family Code section 7611 in dependency proceedings “is to determine whether the alleged father has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathers—the rights to reunification services and custody of the child.” (In re Jerry P., supra, 95 Cal.App.4th at p. 804.) 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 Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)

Here, the record is clear that appellant never married the mother, and the record contains no evidence that they attempted to marry. Therefore, appellant’s claim to presumed father status rests exclusively on fulfillment of the Family Code section 7611, subdivision (d) requirement that he “receive[d] the child into his home and openly h[eld] out the child as his natural child.” Appellant bears the burden of proof by a preponderance of the evidence on both receiving the child into his home and holding the child out as his own. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585-586.)

The question of how to prove that a man has “receiv[ed] a child into his home” and “openly h[eld] out the child” as his own is a complex one. Courts have looked to such factors as whether the father sought to have his name placed on the birth certificate; whether and how long the father cared for the child; unequivocal evidence that the father had acknowledged the child; whether the father provided for the child after the child no longer resided with him; whether the father actively helped the mother in prenatal care; whether, if the child needed public benefits, the father had pursued completion of the requisite paperwork; and whether the father’s care was merely incidental. (See, e.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228-1230; In re Spencer W., supra, 48 Cal.App.4th at pp. 1653-1654.)

On appeal from the dependency court’s determination of presumptive fatherhood, we “review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. ‘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.]” (Miller v. Miller (1998) 64 Cal.App.4th 111, 117-118, quoting In re Spencer W., supra, 48 Cal.App.4th at p. 1650.)

Appellant contends that he met the criteria of a presumed father because he was the only person who attempted to establish a paternal relationship with the baby, and the fact that he did not have an opportunity to live with the child was irrelevant. We conclude that substantial evidence supports the dependency court’s finding that appellant was not the presumed father.

Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume parental responsibilities as fully as the mother will allow and circumstances permit. (In re Julia U. (1998) 64 Cal.App.4th 532, 541.) The record fails to show that appellant offered emotional or prenatal support to the mother during her pregnancy. Although appellant testified that he did not know the mother was pregnant, he earlier told a social worker that he suspected mother was pregnant because she had morning sickness. He also acknowledged that he suspected her of using drugs. Yet he did nothing during the pregnancy to protect the child from harm. Appellant did not sign a declaration of paternity at the hospital and, at the detention hearing, asked for DNA testing.

Appellant claims his case is similar to the situation in In re Jerry P., supra, 95 Cal.App.4th 793, but we disagree. In that case, the nonbiological father and the mother had a year-long relationship before the child was born; he held the child out as his own; he paid for vitamin supplements, bus fare, and medications during the mother’s pregnancy; he identified himself to hospital staff as the child’s father; he visited and held the child every day at the hospital after he was born; he searched for the child after the child was detained; he consistently visited the child during the child’s detention; he established a very good relationship with the child, who referred to him as “daddy”; and he completed classes in parenting and CPR as required by the department of children and family services. (Id. at pp. 797-800.) Except for the fact that appellant visited the baby on four occasions, none of the other factors enunciated in Jerry P. exist here. In addition, the constitutional analysis touched on by the court in Jerry P. concerned a nonbiological father’s liberty interest in his relationship with the child and is not relevant here. (See id. at p. 816.)

This case is also distinguishable from In re Nicholas H. (2002) 28 Cal.4th 56. There, the putative presumed father, Thomas, participated in the child’s birth, was listed on the child’s birth certificate as his father, and provided a home for the mother and child for several years. He took legal action to establish a parental relationship when the mother later tried to prevent him from seeing the child. Thomas “consistently referred to and treated [the child] as his son.” (Id. at p. 61.) The mother nevertheless claimed another man, who had not come forward to assert any parental rights, was the child’s biological father, and Thomas admitted at trial he was not the biological father. (Ibid.) The appellate court concluded that, although Thomas was a presumed father under Family Code section 7611, subdivision (d), his in-court admission that he was not the child’s biological father, in addition to the mother’s testimony, necessarily rebutted the presumption under Family Code section 7612, subdivision (a). (In re Nicholas H., supra, at pp. 62-63.) The California Supreme Court reversed the appellate court, concluding a man does not lose his status as a presumed father by admitting he is not the biological father. (Id. at pp. 63, 70.)

Family Code section 7612, subdivision (a) provides, in relevant part, that a presumption under section 7611 is a rebuttable presumption.

In contrast, as noted above, although appellant admitted that he was not the child’s biological father, he was not listed on the baby’s birth certificate, he never took legal action to establish a parental relationship with the baby, and he knew from the beginning that the child might not be his. Appellant’s only participation at the time of the baby’s birth was that he wrapped her in a blanket and took her to the hospital within an hour of her birth, but he had never substantially provided the baby the necessities of life. Although appellant did more than some fathers and appeared to care for the baby, he failed to show by a preponderance of the evidence he had received the baby into his home and “openly and publicly” held her out as his natural child. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 [“to become a presumed father, a man who has neither married nor attempted to marry his child’s biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home”].)

The facts of In re Tanis H., supra, 59 Cal.App.4th 1218, are helpful to our analysis. In Tanis H., the court found the biological but unwed father, who lived with the mother while she was pregnant, did not qualify for presumed father status because his child was removed from the mother’s custody before the child left the hospital and was never placed in the father’s home. The father had not legally established his relationship to the child, nor was he assertive in seeking prenatal care for the mother, who did not receive such care until the seventh month of her pregnancy. (Id. at p. 1231.) The court rejected the biological father’s “novel theory” that living with the child’s mother while she was pregnant constituted “receiv[ing] the child into his home” within the meaning of Family Code section 7611, subdivision (d). (In re Tanis H., supra, at p. 1229.)

Here, too, appellant never legally established his relationship to the child, and he was not assertive in seeking prenatal care for the mother, even though he suspected her of using drugs during pregnancy. While appellant may have lived with the mother during her pregnancy, that, in and of itself, does not mean that he received the child into his home.

“[T]he burden of proof rested on [appellant] to show that he received the child into his home and that he openly and publicly acknowledged paternity. 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.) The record shows that appellant did not offer substantial evidence to establish either of those requirements. He therefore failed to meet his burden, and the dependency court correctly found that he was not a presumed father.

2. Denial of Services

Appellant contends that the dependency court abused its discretion when it denied him services as a declared parent who was trying to achieve presumed father status. We disagree.

“[O]nly a presumed … father is a ‘parent’ entitled to receive reunification services under section 361.5.” (In re Zacharia D., supra, 6 Cal.4th at p. 451.) Appellant is not a presumed father and, as such, is not entitled to receive reunification services. The dependency court did not err in denying him services.

DISPOSITION

The judgment is affirmed.

WE CONCUR: WISEMAN, Acting P.J. GOMES, J.


Summaries of

In re Girl T.

California Court of Appeals, Fifth District
Apr 2, 2009
No. F055571 (Cal. Ct. App. Apr. 2, 2009)
Case details for

In re Girl T.

Case Details

Full title:In re BABY GIRL T., a Person Coming Under the Juvenile Court Law. KERN…

Court:California Court of Appeals, Fifth District

Date published: Apr 2, 2009

Citations

No. F055571 (Cal. Ct. App. Apr. 2, 2009)