Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. DP013877, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant Christopher S.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant Liv L.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen, Senior Deputy County Counsel, and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
SILLS, P. J.
Christopher S. appeals from the termination of parental rights to his biological son, J. C., claiming the juvenile court erred in denying a hearing on his petition to receive reunification services. (Welf. & Inst. Code, § 388.) He also claims the juvenile court erred in failing to grant de facto parent status to the maternal grandparents. Liv L., J.’s mother, also appeals from the termination of her parental rights, joining in Christopher’s arguments. Additionally, she claims the juvenile court erred in removing J. from the maternal grandparents’ home without a noticed hearing. We find the juvenile court erred in failing to provide Christopher with reunification services and reverse.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
J. C. was born with a positive toxicology screen for methamphetamine on August 6, 2006. J. was the fifth child born to his mother, Liv L. All the siblings had been removed from her custody in July 2005, after her fourth child, Van C., was born with a positive toxicology screen for illegal drugs. Juan C., whom Liv named as J.’s father, could not be located. J. was placed with the maternal grandparents, Eduardo and Delia C., where two of the siblings, Uri C. and Ian L., had been placed in July 2006.
J. was adjudicated a dependent of the juvenile court in September 2006. Both parents failed to attend the hearing, and neither was offered reunification services. The permanent plan selection hearing was set for January 2007. In January, SSA reported J. was doing well with the maternal grandparents, who wanted to adopt him. Notwithstanding the placement of J.’s two siblings in their home, however, the social worker was skeptical about their chances for approval: “[B]ased on a review conducted by the Adoption Applicant Social Worker . . . regarding the applicant’s history of Social Service involvement and information regarding past police involvement, records suggest a high probability that the applicant’s request for an adoptive home study may not be approved . . . .” The parents of the alleged father, Juan and Maricela C., also wanted to adopt; they were “in the process of adopting the child’s sibling, Van C[.], and their home study was completed and approved . . . .”
On January 25, 2007, SSA moved J. to the home of Juan and Maricela. The social worker explained she had “previously informed [Eduardo and Delia] when the home study process began that it would be difficult to approve their home due [to] the lengthy history of child abuse reports and their arrest history.” On March 5, SSA sent Eduardo and Delia a letter denying their “adoptive home study” and declined to consent to their adoption petition.
SSA was unable to locate either the mother, Liv, or the alleged father, Juan, so the juvenile court ordered notice by publication and continued the permanent plan selection hearing to April 4, 2007. On the date of the hearing, Delia and Eduardo filed a request for de facto parent status, stating J. had lived with them from August 16, 2006 to January 26, 2007. Delia declared they had adopted Uri and Ian, and the adoptions were final as of March 27, 2007.
The mother appeared for the first time on April 4. In response to the juvenile court’s questions, she said that J.’s father was Christopher S., not Juan C. She explained, “I didn’t have any prenatal care, so I didn’t know how far along I was. Then the moment I had the baby, I knew that Juan was not the father because of the time period. . . . He was in jail in the time period that my son was conceived, and at that time, I was with Chris.” The court appointed counsel for the mother and trailed the case until April 9 to give SSA time to contact Christopher.
The social worker called Christopher on April 4 and he returned the call on April 5. He told the social worker he was on parole for three years and was working part time for his uncle’s landscaping business. The mother called him the week before and told him “he could be the father of . . . J[.] C[.]” He met the mother after being released on parole from a four-year term of imprisonment. “[T]hey were together for approximately a month and a half, back in early November of 2005 and part of December of 2005.”
Both Christopher and the mother were present in court on April 9. The court appointed counsel for Christopher and granted his motion for a paternity test. The court then denied without prejudice Delia and Eduardo’s request for de facto parent status. “It could be that if someone were assisting them, they would be able to provide you with information that substantiates the appropriateness of granting de facto standing.” The court noted, “But she doesn’t need de facto standing to be able to object to the propriety of having removed the child or the idea that she wants the child back. That would be in the way of [section] 388, and any interested person could file such a thing.” The hearing was continued to obtain the paternity testing results and provide proper notice to Christopher.
In June, SSA reported that Christopher was J.’s biological father. The social worker also reported that Delia “did not pass the home study due to lack of room available in the home for child J. – this was the reason for child J. being removed from maternal grandmother’s home and placed in paternal grandmother’s home. The maternal grandmother has care of the remaining siblings, but was not able to care for child [J.].”
On June 19, Christopher filed a voluntary declaration of paternity, and the juvenile court subsequently declared Christopher the presumed father of J. Christopher also filed a section 388 petition seeking custody or reunification services, which was heard on June 28. Christopher declared he first learned he might be J.’s father in early April, when the mother called him. He “promptly call[ed] the social worker” and attended the court hearing on April 9. He was incarcerated on August 7, 2006, when J. was detained and was not released until January 26, 2007. “If I was informed earlier by the mother that I was possibly the father, I would have made every effort to contact the social worker and/or [made] every effort to attend all the prior court hearings.”
After hearing extensive argument, the juvenile court denied a hearing on the section 388 petition. “The court has no evidence to suggest . . . that at this late stage of the proceedings, that it would be in the best interest of the child to offer services. . . . There is no evidence to suggest that fraud has been involved in these proceedings, which would vitiate the father’s failure to follow up and make sure that he could become the father of this child at the earliest opportunity. [¶] This matter came before the court subsequent to the termination of reunification services and there’s a finding under [section] 361.5(B)(1). That being the case, I believe that the finding of parental unfitness extends back to the jurisdiction/dispositional hearing and that the father has filed this in an untimely fashion and that his failure to come forward earlier is not excused by the conduct of the mother.”
The juvenile court proceeded to terminate the parental rights of Liv, Christopher and Juan. Christopher and Liv filed timely notices of appeal.
DISCUSSION
The juvenile court should have provided Christopher with reunification services.
Christopher argues the juvenile court erred in denying a hearing on his section 388 petition. He claims because he is a presumed father, he was entitled to prove his fitness as a parent before his parental rights could be terminated. We agree.
Christopher is a presumed father because he signed a declaration of paternity and the juvenile court subsequently ruled he had achieved presumed father status. (Fam. Code, § 7570 et seq., § 7611; In re Mary G. (2007) 151 Cal.App.4th 184, 197-198; In re Liam L. (2000) 84 Cal.App.4th 739, 746-747.) Family Code section 7573 provides: “Except as provided in Sections 7575, 7576, and 7577, a completed voluntary declaration of paternity, as described in Section 7574, that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.” There is no dispute that the form Christopher signed and filed with SSA conformed to the statutory requirements.
Family Code section 7575 provides: “(a) The voluntary declaration of paternity shall be executed on a form developed by the Department of Child Support Services in consultation with the State Department of Health Services, the California Family Support Council, and child support advocacy groups. [¶] (b) The form described in subdivision (a) shall contain, at a minimum, the following: [¶] (1) The name and the signature of the mother. [¶] (2) The name and the signature of the father. [¶] (3) The name of the child. [¶] (4) The date of birth of the child. [¶] (5) A statement by the mother that she has read and understands the written materials described in Section 7572, that the man who has signed the voluntary declaration of paternity is the only possible father, and that she consents to the establishment of paternity by signing the voluntary declaration of paternity. (6) A statement by the father that he has read and understands the written materials described in Section 7572, that he understands that by signing the voluntary declaration of paternity he is waiving his rights as described in the written materials, that he is the biological father of the child, and that he consents to the establishment of paternity by signing the voluntary declaration of paternity. [¶] (7) The name and the signature of the person who witnesses the signing of the declaration by the mother and the father.”
A presumed father is entitled to all the rights of a parent in dependency proceedings, including the right to custody absent a detriment finding, reunification services, and the appointment of counsel. (In re Zacharia D. (1993) 6 Cal.4th 435, 451; In re T.R. (2005) 132 Cal.App.4th 1202, 1209; In re Sarah C. (1992) 8 Cal.App.4th 964, 971-972; In re Emily R. (2000) 80 Cal.App.4th 1344, 1354.) The juvenile court here terminated Christopher’s parental rights because it determined reunification services would not be in J.’s best interests so late in the proceedings. This was error. Christopher’s parental rights could be terminated only after the juvenile court offered him the opportunity to reunify with J. and found it would be detrimental to place J. in his custody.
This conclusion is supported by the recent decision in In re Mary G., supra, 151 Cal.App.4th 184. In that case, the appellate court reversed the termination of a father’s parental rights because the juvenile court refused to recognize him as a presumed father based on his voluntary acknowledgement of paternity. The father was the biological father of the child, he and the mother lived together in Michigan when the child was born, and he signed a voluntary affidavit of paternity under Michigan law and was ordered to pay child support. Shortly after the birth, the father and mother split up, and the mother came to California. She was arrested for drug offenses a few months later, and the child was detained. Because the mother had failed to reunify with three older children, she was not offered reunification services. A permanent plan selection hearing was set. (Id. at pp. 192-193.)
In the meantime, the social services agency located the father, who told the court he had signed a paternity declaration and requested a hearing on whether he was a presumed father. The juvenile court ruled he was merely an alleged father and “invited [him] to file a section 388 petition to request reunification services.” (In re Mary G., supra, 151 Cal.App.4th at p. 194.) The father did so. The agency reported that although Frank was currently employed, he had a history of criminal activity and homelessness. He was jailed for domestic violence against the mother while she was pregnant with the child. The juvenile court denied a hearing on the section 388 petition. (Id. at pp. 195-196.)
A few months later, the father filed another section 388 petition requesting reunification services, this time attaching a copy of an “Affidavit of Parentage” from Michigan. The juvenile court decided the Michigan affidavit did not give the father presumed status under California law because the statute “specifically sets out that the Department of Child Support Services in consultation with the State Department of Health Services, the California Association of Hospitals and Health Systems and other affected health provider organizations will work to develop this form. [¶] This specifically talks about California, and an analogy may be drawn, but that would be truly rewriting the law if I decided to honor these Michigan documents.” (In re Mary G., supra, 151 Cal.App.4th at p. 196.) Treating the father as an alleged father, the juvenile court decided reunification services would not be in the child’s best interests and terminated parental rights. (Ibid.)
The appellate court found that the statute was unconstitutional to the extent it based the denial of presumed status solely on geography. “The agency concedes that had [the child] been born in California and had [the father] signed here the identical form he signed in Michigan, he would qualify as a presumed father.” (In re Mary G., supra, 151 Cal.App.4th at p. 198.) More importantly, the court found the juvenile court was not justified in requiring the father to bring a section 388 petition to show that reunification services were in the child’s best interests by the fact that the case was past the reunification stage. “When [the father] requested presumed father status . . ., the court should have granted it and ordered the agency to provide him with a service plan.” (Id. at p. 205.)
Here, SSA argues the evidence supports the juvenile court’s finding that providing reunification services to Christopher would not be in J.’s best interests. It points out Christopher was in and out of prison and had a history of drug abuse. But because Christopher is a presumed father, his right to reunification services is not subject to a best interests analysis under a section 388 petition, where Christopher has the burden of proof. He has the right to attempt reunification with J., who must be returned to his custody unless the juvenile court finds it would be detrimental to do so. (§ 361.5, subd. (a); § 366.21, subd. (e).) And SSA has the burden to prove that detriment. (§ 366.21, subd. (e) & (f); § 366.22, subd. (a).)
SSA argues Christopher should be denied reunification services because he appeared late in the proceedings. It faults him for failing to find out that his sexual activity with Liv resulted in a child and attributes his incarceration at the time J. was born to “his own crimes.” These arguments would be relevant if Christopher was attempting to become a Kelsey S. father, i.e., trying to show he had done all he could do to establish a relationship with the child under the circumstances so as to be entitled to parental rights absent a showing of unfitness. (Adoption of Kelsey S. (1992) 1 Cal.4th 816.) But Christopher is a statutorily presumed father based on the declaration of paternity. He does not need Kelsey S. to establish his parental rights.
The parents have no standing to raise placement issues on behalf of the maternal grandparents.
The parents argue the juvenile court erred in failing to grant de facto parent status to the maternal grandparents. They also argue the removal of J. from the grandparents’ home without a supplemental petition and a noticed hearing was erroneous. The grandparents could have challenged these juvenile court actions, but did not. The parents have no standing to raise these issues. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035.)
DISPOSITION
The judgment terminating parental rights is reversed. The juvenile court is ordered to consider whether it is detrimental to J. to return him to Christopher’s custody, make a detriment finding, if applicable, and, if the detriment finding is made, order SSA to develop a case plan and provide reunification services to Christopher.
WE CONCUR: ARONSON, J., FYBEL, J.