Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed as to J.S.; Super.Ct.No. J207920.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant H.W.
William Hook, under appointment by the Court of Appeal, for Defendant and Respondent J.S.
For reasons stated, post, we deem J.S. to be a respondent in this appeal.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, Acting P.J.
Defendant and Appellant H.W. appeals from an order of the juvenile court finding him to be the alleged father of Jada W. He contends that the juvenile court abused its discretion when it found him to be the alleged father rather than the presumed father. Defendant J.S. (Mother) also filed a notice of appeal; however, she agrees with the juvenile court that the evidence showed H.W. to be an alleged father. We will therefore dismiss her appeal, find her to be a respondent in H.W.’s appeal, and deem her appellant’s opening brief to be a respondent’s brief.
Finding no error or abuse of discretion, we affirm the order.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 26, 2006, two-year-old Jada was taken into protective custody by the San Bernardino County Department of Children’s Services (DCS) when Mother was arrested on various charges while a search warrant was being served at her own mother’s home.
On April 28, 2006, a petition was filed on behalf of Jada pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). On May 1, the juvenile court ordered Jada formally detained and removed from the custody of her parents.
All future statutory references are to the Welfare and Institutions Code section unless otherwise stated.
Mother was never married. At the time of Jada’s conception, Mother and H.W. had been living together for several years, but he was not named as the father on the birth certificate. H.W. had been incarcerated when Jada was born and for a time thereafter. During his imprisonment, Mother had led him to believe he was Jada’s father.
At the outset of the proceedings, Mother was not living with H.W. but named him unequivocally as Jada’s father. H.W. appeared at the May 1, 2006, detention hearing. When interviewed by the social worker, H.W. said that he had “held the child out to his family, friends and community as his child,” had lived with Mother and Jada, and had provided financial support. However, he explained that he could no longer live with Mother due to her explosive anger and mental health issues. Mother confirmed that H.W. had cared for Jada at times and had provided some financial support.
Mother later named two alleged fathers for Jada: first H.W., then Mr. F. In June 2006, DNA test results proved H.W. was not Jada’s biological father. DCS searched for Mr. F. without success. When H.W. learned that he was not Jada’s biological father, he reiterated his willingness and desire to parent her and pay child support if necessary.
The jurisdictional/dispositional hearing was held in August 2006. H.W. appeared and requested presumed-father status, despite the revelation that he was not Jada’s biological father, arguing he had helped raise Jada and had held her out as his own. Mother opposed, contending H.W. had always known he was not the father and had never held the child out as his own.
At the conclusion of the hearing, the juvenile court sustained the section 300 petition as amended, declared Jada a dependent of the court, and placed her in foster care. The court found H.W. to be an alleged father but granted him visitation and reunification services, explaining H.W. might qualify as a possible placement for the child in the future and should have an opportunity “to prove there is an existing relationship.” The court noted that legally H.W. did not meet the standard for presumed-father status. This appeal followed.
I
DISCUSSION
H.W. argues that the juvenile court erred in finding that he was not a presumed father.
Dependency law recognizes four types of fathers: presumed, alleged, biological, and de facto. (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 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, including the more typical situation where the man is the presumed father of a child because he “‘receives the child into his home and openly holds out the child as his natural child.’ ([Fam. Code,] § 7611, subd. (d).)” (In re Liam L. (2000) 84 Cal.App.4th 739, 745.) 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. (Zacharia D., 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.) However, he does have the opportunity to appear and assert a position, including his paternal status. (Id. at p. 1408.)
Only a presumed father has a right of custody and a right to reunification services as necessary to regain custody of a dependent child (In re Zacharia D., supra, 6 Cal.4th at p. 451), although the juvenile court may provide services to a biological father if it determines that the provision of services will benefit the child. (Welf. & Inst. Code, § 361.5, subd. (a).) In general, a presumed father is one who “‘promptly comes forward and demonstrates a full commitment to his paternal responsibilities -- emotional, financial, and otherwise[,]’” or who has either married or attempted to marry the child’s biological mother. (In re Jerry P., supra, 95 Cal.App.4th at pp. 801-802, fn. omitted; see also Fam. Code, § 7611, subds. (b), (c).) 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.” (Jerry P., 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.)
Since the record is clear that H.W. never married Mother, and the record contains no evidence that they attempted to marry, H.W.’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.” H.W. 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; the number of people to whom 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 Sarah C. (1992) 8 Cal.App.4th 964, 974-975; In re Spencer W., supra, 48 Cal.App.4th at pp. 1653-1654.)
Upon review of the juvenile 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.)
H.W. contends that he met the criteria of a presumed father because he received Jada into his home and openly held Jada out as his natural child. We conclude that substantial evidence supported the juvenile court’s finding that H.W. was the alleged, rather than the presumed, father. In order to demonstrate a full commitment to his parental responsibilities, the biological father must promptly attempt to assume full parental responsibilities as soon as he reasonably knows of the pregnancy. (In re Julia U. (1998) 64 Cal.App.4th 532, 541.) The record fails to show that H.W. offered emotional or financial support to Mother before or during her pregnancy or assisted her during or after Jada’s birth. Indeed, H.W. was in jail while Mother was pregnant with Jada and following her birth. The first time H.W. saw Jada was when she was nearly nine months old, and the longest consecutive time he had lived with Jada was five days. In addition, H.W. presented no evidence that he gave Mother any prenatal support. Further, H.W. admitted he went to jail a couple of times after Jada’s birth, was jobless most of the time, and lived from “motel to motel.” We agree with Mother that the only evidence presented to support his claim of presumed fatherhood was H.W.’s own testimony, which lacked detail, was equivocal, and was uncorroborated.
Furthermore, though H.W. claimed that he held Jada out as his natural child, introduced Jada to his father as his father’s grandchild, and bought Jada milk, there was no evidence substantiating H.W.’s testimony. He presented no witnesses to say he had ever held Jada out as his own, provided for her, or lived with her. Likewise, he brought no receipts, bank statements, or check stubs proving he had purchased items for Jada, taken her to the doctor, or paid utilities or rent. Additionally, H.W. was not present at Jada’s birth, he did not have his name on the birth certificate, and he never sought a formal judgment of paternity or took legal action to gain custody of Jada. Other than his self-serving testimony, H.W. provided no evidence showing that he held Jada out to be his daughter.
This case is nothing like the situation in In re Jerry P., supra, 95 Cal.App.4th 793. In that case, the nonbiological father held the child out as his own; paid for vitamin supplements, bus fare, and medications during the mother’s pregnancy; visited and held the child every day at the hospital after he was born; searched for the child after his detention; consistently visited the child during his detention; established a very good relationship with the child, who referred to him as “daddy”; and completed classes in parenting and CPR as required by the Department of Children and Family Services. (Id. at pp. 797-800.) None of those factors exist here. Further, the constitutional analysis touched on by the court 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, relied upon by H.W. There, the putative presumed father, Thomas, participated in Nicholas’s birth, was listed on Nicholas’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 Nicholas. Thomas “consistently referred to and treated Nicholas as his son.” (Id. at p. 61.) The mother nevertheless claimed another man who had not come forward to assert any parental rights was Nicholas’s biological father, and Thomas admitted at the 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 he was not Nicholas’s biological father, in addition to the mother’s testimony, necessarily rebutted the presumption under Family Code section 7612, subdivision (a). (Nicholas H., 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.)
In contrast, as noted above, H.W. was not listed on the birth certificate, did not participate in the birth, never took legal action to establish a parental relationship with Jada, and was told several times by Mother that Jada might not be his child. He also admitted that he had never paid child support, had never substantially provided Jada the necessities of life, and saw Jada infrequently. Although H.W. did more than some fathers and appeared to care for Jada, he failed to show by a preponderance of the evidence he had received Jada into his home and had “openly and publicly” held her out as his natural child. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.) “[T]he burden of proof rested on [H.W.] 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 H.W. did not offer substantial evidence to establish either of these requirements. He therefore failed to meet his burden, and the juvenile court correctly found that he was not a presumed father.
We reject H.W.’s claim that the juvenile court based its decision merely on H.W.’s nonbiological status. The record belies this contention. Indeed, even though he was not the biological father of Jada, the court granted H.W reunification services and a chance to become a presumed father by the next review hearing by granting him visitation to “prove there’s an existing relationship.”
III
DISPOSITION
Mother’s appeal is dismissed. The judgment is affirmed.
We concur: GAUT, J., KING, J.