Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JD00-3399
Richman, J.
In 2001, the Juvenile Court of San Francisco made C.J. the guardian of J.C., who was the subject of a dependency that was terminated the following year. Five years later, the court reinstated J.C.’s dependency by sustaining the allegations of a supplemental petition filed by respondent San Francisco Department of Human Services pursuant to Welfare and Institutions Code section 387. The court also denied a motion by C.J. to be declared J.C.’s presumed mother. C.J.’s guardianship was terminated, and J.C. was placed with a relative of his father.
Statutory references are to Welfare and Institutions Code unless otherwise indicated.
Both J.C. and C.J. have appealed from the dispositional order. Their primary contentions are that the juvenile court erred in denying C.J.’s motion and in terminating the guardianship. They also make a barrage of procedural and policy arguments directed against various other rulings of the juvenile court. We conclude that none of the arguments has merit, and we affirm.
BACKGROUND
This case has a fairly lengthy history, but it can be reduced in the retelling to the events that are relevant to the issues raised on these appeals.
In May 2001, the juvenile court sustained the allegations of an amended petition by respondent to the effect that J.C.’s mother was unable to care for him due to long-standing substance abuse problems. J.C. was declared a dependent child, and he was placed in the custody of C.J., a relative.
C.J. was initially described as J.C.’s “maternal second cousin,” later as his aunt. C.J describes herself in her brief as the first cousin of J.C.’s mother.
At the six-month review hearing held in November 2001, the court accepted the social worker’s recommendation to commence proceedings to terminate the parental rights of both his mother and father. J.C. was doing well in his placement with C.J., who was interested in adopting him. C.J. was appointed J.C.’s temporary legal guardian.
The termination hearing was held on April 2002. The court declined to terminate the parents’ rights on the ground it “would be detrimental to the child because [¶] . . . [¶] The child is living with a relative . . . who is unable or unwilling to adopt because of exceptional circumstances, but is willing and able to provide the child with a stable and permanent home, and removal would be detrimental to the child.” C.J. was appointed J.C.’s legal guardian. The court then terminated the dependency.
On October 3, 2006, respondent filed petitions pursuant to sections 387 and 388. The petitions were based on field reports and an investigation done by respondent in late September. One report, dated September 28, advised respondent that J.C. was “living in a drug house, and has been wearing the same filthy clothes for the last 4 days. He’s outside all hours of the day and night, he’s almost been hit by a car, he’s underweight” The following day J.C. was found “roaming around the streets in front of Bret Harte Elementary School. He reported he . . . was told by the LG [legal guardian, i.e., C.J.] to walk to the bus by himself. Then he walked back home by himself, and was told by the LG to go back to the bus and wait . . . .” When respondent sent an investigator to check out these reports, one of the neighbors stated “it was about time CPS did something. We were all worried about the kids. She [C.J.] is on drugs and not caring for the kids.”
The gist of respondent’s petitions was that several field reports had led respondent to conclude that C.J. “has a substance abuse problem that requires treatment, and interferes with her ability to care for the child, including not meeting the dental, emotional, and educational needs of the child,” and therefore J.C.’s dependency should be reinstated. C.J.’s whereabouts were unknown, and “all attempts to make contact . . . have failed.”
C.J. did not appear at the detention hearing held on October 6. After finding that her absence was willful, the juvenile court ordered J.C. detained.
C.J. also had a daughter of her own, whose dependency proceeded in conjunction with J.C. The other dependency plays no part on these appeals. However, in April 2007, C.J. essentially admitted the allegations of the dependency petition concerning the other child.
The matter essentially trailed for a number of months. During that period, C.J. was receiving reunification services as part of the dependency of her own child. (See fn. 3, ante.) Most information we have detailing what occurred in that period comes from the reports of the social worker. The first report, in November 2006, advised that C.J. had been in Las Vegas when J.C. was detained, “could not explain why she had not contacted the Agency in the 18 days since her children were removed,” had failed to show up for an appointment on October 24, “nor has she had any contact . . . since.” Moreover, “[C.J.] . . . has made no effort to visit with the minor.”
The social worker reported that J.C. had been placed with another relative—this time a paternal relative—and was improving. So was his situation at school: “According to the school, J.C. was on the verge of being asked to leave school because he was behind on his immunizations and his caregiver [i.e., C.J.] had never provided the appropriate medical paperwork required to remain in public school. The school reports that J.C.’s attendance and hygiene have improved significantly since he was removed from his guardian, although he has also had some escalation in his behaviors in recent weeks as well.” The short term goal was “to modify the permanent plan from legal guardianship to long-term placement” because neither of J.C.’s parents were in a position to care for him and “[C.J.] is no longer able to offer the minor a suitable home.”
J.C.’s father was in San Quentin at the time.
Things had improved somewhat by the time the social worker filed an addendum report in January 2007. She reported that she was meeting with C.J. on a regular basis. C.J. “is currently attending the BAART methadone maintenance program, where she receives a daily methadone dose, . . . checks in on a weekly basis with a counselor,” and “attends daily NA meetings.” On the other hand, C.J. “has been very reluctant to complete a substance abuse evaluation, as requested,” and the BAART program “does not include a more clinical treatment component. This is somewhat concerning in addressing the crucial issue of long-term sobriety as they relate to substance abuse when considering reunifying children.”
The social worker also reported C.J. had been having weekly supervised visits without incident for more than a month. However, C.J. “has struggled financially in recent years,” and “does not currently have stable housing of her own but is living with her mother in Sunnydale.” Ominously, “The case file indicates that there were concerns for several months that the guardianship may have been overwhelming for [C.J.], as she repeatedly was out of compliance with ensuring J.C. received appropriate medical and dental care, and she did not enroll him in school in a timely fashion . . . . [C.J.] also previously entered (but did not complete) residential treatment while J.C. was in her care, then relapsed again, leading to a situation that was unsafe for the children, requiring their removal.”
The social worker concluded: “While the Agency is hopeful that [C.J.] will be able to reunify with her biological daughter, and will continue to support her in reaching that goal, the Agency cannot recommend providing reunification services for the minor J.C.. Given that J.C. first became involved in the child welfare system as an infant, it appears that what is most important at this time is identifying the most permanent, stable environment for him. At this time, the Agency continues to recommend that the guardianship be dissolved, and that the permanent plan for J.C. be amended to long-term foster care with his paternal relatives (this will likely be amended to guardianship in the future), who have stated their commitment to caring for J.C. permanently.”
On January 18, 2007, counsel for C.J. advised the court that “We will be contesting the request to have the guardianship set aside,” and requested the court appoint an expert to complete “a bonding study” between J.C. and C.J. “which will inform the Court as to the best interest of [J.C.].” The court approved the request.
The social worker submitted another report in April 2007. She noted that J.C.’s father had been paroled from prison, and wished to develop a relationship with his son. The father “also expressed . . . that he is very grateful that [C.J.] took care of his son for several years, and he indicated that he hopes they will continue to have a close relationship. He is very much in support of continued and ongoing visitation between J.C. and [C.J.].”
The social worker further noted that C.J. “continues to test clean,” had completed a parenting class, enrolled in a treatment program, and was scheduled to begin individual therapy. She also had maintained her visits with J.C., albeit on a sporadic basis. “[C.J.] recently indicated . . . that she has been thinking a lot about her current circumstances and what is best for her, her daughter, as well as J.C., whom she clearly loves very much. [C.J.] . . . also admitted that this is something that she struggles with, now that J.C. is placed with paternal relatives, because she has always wanted for him to be able to be close to his biological family. [C.J.] made it clear that, even if the guardianship is dissolved, she will continue to love J.C. and wants to be a significant part of his life. To this worker’s knowledge, all parties involved, including the Agency, and J.C.’s father and other paternal relatives, are very much in support of [C.J.] continuing to have significant contact with J.C., so long as she is sober and stable.” The social worker was “hopeful that this case may be resolved in a mediation.”
On April 4, 2007, the court ordered J.C.’s case sent to mediation. The mediation was not successful, and on May 24 the parties agreed to “set the matter for contested hearing.” One week later, respondent refiled its motion pursuant to section 388.
The bonding study was completed in late May. The psychologist who prepared it, Patricia Van Horn, Ph.D., concluded that C.J.“has some strong parenting skills,” and that J.C. “appears to have a strong, preferential tie to [C.J.].” “It is clear that she matters a good deal to him,” and he calls her “Momma.” J.C. also has “a meaningful relationship” with C.J.’s daughter. J.C.’s “very sense of who he is as a person is tied up in the relationship he has with” C.J. and her daughter.
On the other hand, Dr. Van Horn noted that “It is also clear that the neglect that J.C. suffered while [C.J.] was using cocaine left its impression on him . . . . It appears to me that, although he has a clear tie to [C.J.] and can rely on her for certain kinds of help and connection, that he does not represent [sic] her as someone who cares for him at a time at time[s] when he is vulnerable.” Conversely, J.C. has a positive relationship with his current foster parent, his father’s relative, and “J.C. has learned to rely on” her.
Dr. Van Horn’s bottom line was that reunification was possible according to a strict timetable: (1) C.J.’s daughter “should be returned home first”; (2) J.C. should have visitation at C.J.’s home, moving to overnight visits; and (3) respondent should keep this case open for at least 6 months following reunification for the purpose of monitoring [C.J.]’s continued sobriety.”
Taking the hint that a presumed parent is entitled to reunification services (see In re Zacharia D. (1993) 6 Cal.4th 435, 451), on June 19, 2007, C.J. noticed a “Motion To Be Declared Presumed Mother of [J.C.]”. The motion was based in large part on the bonding study, which was attached to the motion.
And appointed counsel, which C.J. already had. Most importantly, a presumed parent ordinarily gets custody, unless the court finds it would detrimental to the child. (§§ 317, subd. (a)(1) [counsel], 361.2, subd. (a) [custody], 361.5, subd. (a) [reunification services].)
On June 27, 2007, counsel for J.C., his biological father, and respondent filed a stipulation that the biological father “shall be named as [J.C.’s] father; the stipulation was entered as an order of the court.
Two days later, the biological father filed written opposition to C.J.’s “Presumed Mother Motion.” The opposition made two arguments. First, J.C. “has a biological mother, . . . who was recognized by this Court when she was given reunification services in the dependency proceedings involving this child in 2001. Although she failed to reunify with her son, the long term plan was guardianship, and her parental rights were never terminated. Thus [she] continues to be the presumed mother and [the biological father] is J.C.’s presumed father.” Second, citing In re T.R. (2005) 132 Cal.App.4th 1202, C.J. had “disqualified herself for presumed mother status” because her conduct had been “fundamentally inconsistent with the role of a parent.” Respondent filed a joinder in the father’s opposition.
In her final report, the social worker noted that C.J. had missed eight out of 20 scheduled visits with J.C..” And the report concluded: “Given that [C.J.] has minimally participated in services and regularly visited the children, the undersigned recommended that she be allowed six additional months to complete a drug treatment program and individual therapy in order to reunite with her daughter. However, the situation with J.C. is not the same. J.C. has already lost one maternal figure through substance abuse and abandonment. During this legal guardianship, he has resided with [C.J.] [and her daughter] in a drug treatment program; has had his medical and dental needs ignored; has not had his needs for clothing, shelter and nourishment met and has been largely left to fend for himself. It is not in dispute that J.C. relates towards [C.J.] as his mother. Unfortunately, this is more a reflection of a stunted awareness and dependency not nurturance or protection. [¶] J.C. is now in a home with rules, limits and discipline but also positive attention, affection and supervision. He has become acquainted with his father and paternal family and been exposed to wholesome and structured activities. [His paternal relative foster care giver] has . . . hopes that in the not so distant future J.C. will be able to live with his father.” (CT 309-310)
The social worker also noted a new factor: “[J.C.’s father] wants J.C. to live with him and has stated that he can provide a home with one month’s notice. He does feel, however, that it would be less confusing to J.C. if they develop their relationship before any move takes place.”
On July 11, 2007, after hearing argument, court denied C.J.’s motion for presumed mother status.
The contested hearing was held on July 24 and 26, 2007. C.J. and J.C.’s father were both present. The hearing commenced with J.C. submitting on the supplemental petition, which the court sustained.
The court then heard from Martin Chee, D.D.S., who testified that when he first treated J.C. in April 2007, he had six cavities and an abscessed molar.
Dr. Patricia Van Horn, the psychologist who prepared the bonding study, testified that the reason she recommended in her study that C.J. be offered reunification services was that “although their relationship was certainly not perfect, it was one that was very important to him. She is a person who has a lot of meaning to him. . . . [¶] . . . [I]t seemed to me that it was in J.C.’s best interest that this person who had offered him the most continuous relationship that he had had in his life, be offered the opportunity to reunify with him.” Giving J.C. the opportunity to reunify with C.J. “would minimize the chances that he would later suffer depression, would minimize the chances that he would somehow feel at fault for his separation.” On the other hand, even if C.J. were no longer J.C.’s primary caregiver, “if he were able to have a continuing relationship with [C.J.] such that it was clear that she went along caring about him and so she could make it clear to him that their separation wasn’t his fault . . ., then I think that her continuing to be in his life would moderate the potential for his future suffering from ending that relationship.”
Dr. Van Horn further testified that although J.C. calls C.J. “his momma” and “relates to her as if she were his mother,” he “is aware . . . that she is not his biological mother.” J.C. has “a pretty supportive big brother kind of relationship” with C.J.’s daughter. But, Dr. Van Horn made clear, she is not recommending that J.C. be returned to C.J.’s custody “at this moment.”
Social worker Cheryl Baker testified that she had been J.C.’s case worker since April of 2007. One of the reasons respondent was not recommending continuance of C.J.’s guardianship was that she had been living with J.C. at a substance abuse facility, but C.J. left it after she had a “relapse.” Respondent had referred C.J. to several other programs, but her “lack of commitment” caused concern and contributed to respondent’s recommendation to terminate J.C.’s guardianship. As Ms. Baker put it, “I just don’t think we can take any more chances in his future.” C.J. told respondent that her entry into the facility “was not for drugs, it was because she had a housing need.”
Ms. Baker further testified that J.C.’s natural mother was “not in his life now at all,” but his “damaged relationship” with her was one of the reasons respondent had concerns about risking the same result if C.J. continued as his guardian. “She’s let him down before, and what guarantee can I make that he is going to be taken care of as he is entitled to.” Respondent was currently “considering placing [J.C.] with his father, but . . . there’s a number of things that will have to be in place before that happens.” Ms. Baker noted that one of the reasons this was being considered was that J.C. “loves to be around men . . . he just really attaches to male figures.” The father does not have visitation with J.C.
However, he does speak on the telephone with J.C. on a regular basis.
Ms. Baker was against Dr. Van Horn’s recommendation that C.J. receive reunification services “for precisely this reason: [C.J.] is getting reunification services for her daughter, and I wrote a previous report criticizing her compliance with those [reunification] requirements. It is not at all certain that she’s going to be able to reunite with her own child, least of all her ward [sic].” Moreover, the reunification services C.J. was receiving were “totally separate” from J.C.’s situation.
According to Ms. Baker, respondent’s records showed proof of only one medical visit and “a possible” dental visit for J.C. during the four years of C.J.’s guardianship from 2002 through 2006. Prior to J.C.’s 2006 detention, the school J.C. was attending had made a referral to respondent that J.C. “had very, very bad teeth and that he was in pain from his teeth.” All of J.C.’s immunizations were late. This was during C.J.’s guardianship, when respondent provided her with money for housing, child care, and household items, as well as referrals for medical services. Ms. Baker concluded that C.J.’s behavior while J.C.’s guardianship demonstrated that “his needs were not in any way a priority . . . this child was pretty much on his own.”
Ms. Baker stated in her final report that C.J. “was provided with a monthly grant for . . . childcare payments, furniture, diapers and formula.”
The final witness at the contested hearing was C.J., who testified as follows: During her guardianship of J.C., “I was there for him all the time for all his needs. Loving him, caring for him and just being his mother and him being my son.” She took J.C. to his first appointment with a dentist, and scheduled a second visit, but she missed it because of a “substance abuse . . . issue.” C.J. further testified that in the middle of 2005, she “stumbled” when she left her treatment program. “I believe I made a big mistake in not meeting his needs due to my addiction, but I am fixing my mistakes. I am clean and sober today and I am trying to do the best I can to give him what he needs . . . if he is to come back home to me.” C.J. further testified that her social worker referred her for individual therapy. C.J. made an appointment for April 2007, but she missed it. She had another appointment scheduled in mid-August.
On cross-examination, C.J. testified that her pending therapy appointment is not for her substance abuse problem, but for “depression.” She used heroin for 11 years, and crack cocaine for four, including while caring for J.C., but she denied having a problem with alcohol. C.J. admitted that when J.C. was removed from her custody, she was not in San Francisco, and did not contact respondent for 18 days. After J.C. was removed from her custody, C.J. refused her social worker’s request to enter a residential treatment program.
After hearing extensive argument, the court took the matter under submission and promised to “prepare something for you in writing.”
On August 2, 2007, the trial court entered an order providing in relevant part as follows:
“As to the § 387 petition, the Court finds and orders as follows: [¶] Dependency status is reinstated on behalf of [J.C.]. [¶] The supplemental petition is sustained, and the prior order placing the child in the home of the Legal Guardian, [C.J.], is vacated. [¶] The child is to reside in the home of a relative [the paternal relative], under the supervision of [respondent]. The order appointing [C.J.] as the child’s legal Guardian is vacated and the Guardianship is terminated. The permanent plant is modified from Legal Guardianship to long term placement . . . .
“As to the § 388 petition, the Court finds and orders as follows: [¶] [Respondent] has evaluated, and the Court has considered, whether services could be provided to the Legal Guardian that would keep the child safe in her home. [¶] The previous order of the Court appointing [C.J.] as the Legal Guardian and terminating dependency is vacated. [¶] The proposed modification reinstating dependency, vacating the order appointing [C.J.] as Legal Guardian, terminating the Legal Guardianship, and modifying the permanent plan from Legal Guardianship to long term placement in the home of a relative, is granted. [¶] The petition states a change of circumstances or new evidence, and the best interests of the child are promoted by the modification as ruled on by the Court.”
Up to now, all of the decisions and rulings had been made by Commissioner Lyons. C.J. asked for rehearing of Commissioner Lyons’s August 2 order by a judge of the superior court. Judge Hitchens denied the petition for rehearing on August 27, 2007.
Separate timely notices of appeal were filed by J.C. and C.J. from the August 2 dispositional order. We permitted J.C. and C.J. to amend their respective notices of appeal to also designate the July 11 order denying C.J.’s motion for presumed parent status.
DISCUSSION
C.J.’s Procedural Arguments Seeking To Overturn The Rulings Against Her Are Unavailing
The earliest chronological target selected by C.J. is the October 6, 2006 hearing at which J.C. was detained from C.J.’s custody. She submits a dozen reasons for reversal of the detention order, the order denying her motion to be declared J.C.’s presumed mother, and the order by which the court ruled on the two petitions that were the subject of the contested hearing. Some of the claims are asserted in such abbreviated and conclusory language, and without supporting argument and authorities, that they can be rejected on that basis alone. (People v. Stanley (1995) 10 Cal.4th 764, 793; In re S.C. (2006) 138 Cal.App.4th 396, 408, 412; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.)
J.C. joins most of C.J.’s arguments.
C.J. cites rule 5.670(b) of the California Rules of Court, which governs the timing of dependency petitions when a child is removed from the custody of parent or guardian: “If the social worker takes the child into custody, the social worker must immediately file a petition with the clerk of the juvenile court, and the clerk must immediately set the matter for hearing on the detention hearing calendar. A child who is detained must be released within 48 hours, excluding noncourt days, unless a petition has been filed.” (See §§ 313, 315.)
C.J. notes that J.C. was removed on Friday, September 29, 2006, but respondent’s petition was not filed until Wednesday, October 4, 2006, beyond the 48-hour deadline. She also notes that there was no compliance with that part of rule 5.670 that directs that a juvenile court at a detention hearing “must consider the issue of visitation between the child and other persons . . . and make appropriate orders.” (Cal. Rules of Court, rule, 5.670(g).) If C.J. believes these are grounds for reversal, she is badly mistaken.
There is an air of abstract unreality about these arguments. Remember that when J.C. was taken into custody, he was roaming the streets in front of his elementary school. Unable to contact C.J., the social worker sent to the scene not unnaturally thought that J.C. had been “abandoned . . . with an unrelated adult.” When the detention hearing was held on October 6, C.J. was not present. The juvenile expressly found “that [the] legal guardian was also notified of the detention this morning” and that “her failure to appear today” was “willful.” In fact, it was 18 days before C.J. contacted respondent.
In these circumstances, literal compliance with the 48-hour rule would obviously be excused as impossible. To whom would J.C. be returned? To his father in San Quentin? To C.J., whose whereabouts were unknown and who was believed to have abandoned him in the first place? To the “unrelated adult”? And it appears no less vacuous to talk about visitation with two just-detained minors, absentee parents, and a missing guardian.
In any event, these arguments were never made to the juvenile court. Although this may be excused by C.J.’s absence at the detention hearing, the issues were never mentioned thereafter, even when C.J. sought rehearing of Commissioner Lyons’s decision before Judge Hitchens. This inaction amounts to forfeiture or waiver of C.J.’s right to complain now on appeal for the first time. (E.g., In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Elijah H. (2005) 127 Cal.App.4th 576, 582.)
C.J. next directs a number of arguments against a number of perceived defects and procedures attending the contested hearing.
She first attacks the section 387 petition filed by respondent because it “contain[ed] no ultimate facts,” and did not state reasons why it was necessary to change J.C.’s placement with C.J. These alleged pleading defects were not raised in the trial court and thus are precluded here. (In re S.B., supra, 32 Cal.4th 1287, 1293; In re S.O. (2002) 103 Cal.App.4th 453, 459-460 and decisions cited.) In any event, to judge by the transcript of the contested hearing, C.J.’s counsel knew exactly what was at issue, and she had a strategy for meeting it. Accordingly, no prejudice is shown, because no defect or omission in the pleading amounted to a lack of required notice. (E.g., In re S.C., supra, 138 Cal.App.4th 396, 410-411; In re Athena P. (2002) 103 Cal.App.4th 617, 626-628; In re S.O., supra, at pp. 460-461.)
C.J. contends that that the contested hearing was “untimely” because it was not held within six months of J.C.’s detention, as required by section 352, subdivision (b). Insofar as C.J. suggests that the deadline is jurisdictional, such a suggestion is not correct. (In re Richard H. (1991) 234 Cal.App.3d 1351, 1362.) One of the reasons the contested hearing was not held within the six-month period was a number of continuances that C.J. either requested or did not protest. On April 4, 2007, three months before the contested hearing, the court raised the matter of the six-month rule, whereupon C.J. waived the deadline. In such circumstances, she cannot be heard to complain. (§ 352, subd. (c); In re Richard H., supra, at p. 1362.) Moreover, C.J. does not identify any prejudice from the delay, which if anything enabled her to be further along in her recovery—and thus have a more solid basis for her own motion and for opposing respondent’s motions. (See In re Angelique C. (2003) 113 Cal.App.4th 509, 523.)
Next, C.J. argues that the ruling on respondent’s section 387 petition did not include a finding whether “[t]he allegation that the previous disposition has not been effective is or is not true” required by California Rules of Court, rule 5.565(e)(1)(B). Again, the argument is rejected because it was not raised in the juvenile court. (In re S.B., supra, 32 Cal.4th 1287, 1293.) In any event, the point of the missing finding is implicit in Commissioner Lyons’s granting the petition, but also at the same time granting respondent’s section 388 motion because it “states a change of circumstances or new evidence, and the best interests of the child are promoted by the modifications as ruled on by the Court”—i.e., “reinstating dependency, vacating the order appointing [C.J.] as Legal Guardian, terminating the Legal Guardianship, and modifying the permanent plan from Legal Guardianship to long term placement in the home of a relative.”
C.J. faults the juvenile court for proceeding without a new dispositional report. Again, the claim fails because it was not raised before. (In re S.B., supra, 32 Cal.4th 1287, 1293.) It would also fail on its merits. With the dependency reinstated, the court could refer to the disposition report prepared in 2001, another one prepared in 2006, and the numerous addenda and review reports filed thereafter. The last report, titled “387 Supplemental Petition; Addendum,” was filed in July 2007, the same month that the contested hearing was held.
Because the standard of proof on a section 387 petition differs from the standard on a section 388 petition, C.J. attacks Commissioner Lyons for failing to articulate what standard was being applied to each of the petitions filed by respondent. Courts are generally presumed to apply the correct burden of proof. (Evid. Code, § 664; Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914.) A trial court’s failure to articulate the standard of proof it is applying is deemed error only where “either a new standard of proof has been recently announced or the applicable standard is unclear.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 548.) Neither exception governs here.
This analysis is also sufficient to defeat C.J.’s attack on the juvenile court for failing to state the burden of proof employed in denying her motion to be declared J.C.’s presumed mother. We must note that this attack is even less justified, because there is no question of conflicting standards applying to our review of C.J.’s motion.
Section 316.2 directs that “At the detention hearing or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and addresses of all presumed or alleged fathers,” and a number of related questions, including “Whether any man . . . qualifies as a presumed father.” (Id., subds. (a) & (a)(7).) The statute also directs that “After any inquiry, proceeding, or determination made pursuant to this section, the juvenile court shall note its findings in the minutes of the court.” (Id., subd. (f).) On the assumption that this statute applied to her motion, C.J. asserts the order denying her presumed parent motion must be reversed “because the lower court failed to make findings of fact as required by section 316.2.” C.J.’s assumption is mistaken.
Section 316.2 does not apply to her motion because it has an entirely different function. The statute is obviously meant to mandate an effort to establish the existence and identity of parents not already known. However, as C.J. sees it, section 316.2 obliged Commissioner Lyons to inquire if there was a presumed mother out there, this before C.J. filed her motion to have Commissioner Lyons vest her with that status. What sort of finding could have been made in those circumstances? We will not construe section 316.2 to require such a pointless exercise. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744; In re Derrick S. (2007) 156 Cal.App.4th 436, 448.)
The Juvenile Court Did Not Abuse Its Discretion In C.J.’s Motion For Presumed Mother Status
The primary contention made by J.C. and C.J. is that the juvenile court erred in denying C.J.’s motion to be declared J.C.’s presumed mother. Respondent appears to think it sufficient to merely reiterate the point made in the biological father’s opposition to C.J.’s motion, namely, that if there is an undisputed biological mother who is still living, there ipso facto cannot be a presumed mother. Things are not that simple.
“Designation as a presumed parent is critical in dependency proceedings because it entitles the presumed parent to appointed counsel, custody absent a finding of detriment and a reunification plan (§§ 317, subd. (a), 361.2, subd. (a), 361.5, subd. (a)). Consequently, presumed parentage has been heavily litigated in the past decade. Though most of the decisional law has focused on the definition of the presumed father, the legal principles concerning the presumed father apply equally to a woman seeking presumed mother status.” (In re Salvador M. (2003) 111 Cal.App.4th 1353, 1357, citing In re Karen C. (2002) 101 Cal.App.4th 932, 938.) The Supreme Court agrees. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 119-120, citing Salvador M. and Karen C.).) So, it appears that just as a man can be a biological or natural father, a presumed father, an alleged father, or a de facto father, so can a woman. Just as a child can have more than one presumed father (see In re Kiana A. (2001) 93 Cal.App.4th 1109; Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108), the same principles of equality must allow for the possibility of more than one presumed mother.
To name only those categories used in dependency and termination proceedings. (See In re A.A. (2003) 114 Cal.App.4th 771, 778.)
Thus, maternity may be established “by proof of her having given birth to the child, or under this part [i.e., the Uniform Parentage Act, Fam. Code § 7600 et seq.].” (Fam. Code, § 7610, subd. (a).) That statutory scheme specifies that the rules pertaining to paternity actions are also applicable to maternity actions. (Fam. Code, § 7650, subd. (a).)
The ways in which presumed fatherhood may be established, and which are therefore the ways for establishing maternity, are laid out in Family Code section 7611. (See Amy G. v. M.W. (2006) 142 Cal.App.4th 1, 12, citing Elisa B., Salvador M. and Karen C.) The ways are six: marriage to the mother prior to birth of the child (Fam. Code, § 7611, subd. (a)); an “attempted marriage” prior to the birth that “is or could be declared invalid” (id., subd. (b)); an “attempted marriage” after to the birth that “is or could be declared invalid” (id., subd. (c)); the man “receives the child into his home and openly holds out the child as his natural child” (id., subd. (d)); the child was born in a foreign country and the man made a written declaration of paternity (id., subd. (e)), or; the man dies while the child is in utero (id., subd. (f)).
It was C.J.’s burden to establish by a preponderance of the evidence that she satisfied one of the requirements for presumed parent status. (In re A.A., supra, 114 Cal.App.4th 771, 782.). By denying her motion to be declared J.C.’s presumed mother, the juvenile court implicitly determined that she had failed to carry that burden. The only question for us would be whether substantial evidence supported that determination. (Ibid.; In re Salvador M., supra, 111 Cal.App.4th 1353, 1357-1358.) There is.
Contrary to the approach adopted by C.J. in her opening brief, we are obliged to review the denial of C.J.’s motion on the basis of the record before the juvenile court at that time. In other words, we do not take account of the transcript of the subsequent contested hearing. (In re Zeth S. (2003) 31 Cal.4th 396, 405; In re Arturo D. (2002) 27 Cal.4th 60, 78, fn. 18.) Nevertheless, having reviewed that transcript, we note that it would only provide additional backing for our conclusion that the denial is supported by substantial evidence.
However, before reaching the merits, we must respond to the not-so-veiled criticism from J.C. and C.J. directed at Commissioner Lyons for “summarily” denying C.J.’s motion “without a hearing.” This is simply wrong as a matter of fact and utterly unfair to a dedicated judicial officer. We have a reporter’s transcript of the hearing Commissioner Lyons conducted on C.J.’s motion. Counsel for C.J., J.C., respondent, and the father’s counsel were present, as was C.J. herself. The commissioner first established on the record that she had received all papers filed in connection with the motion. She then heard brief argument from C.J.’s counsel, responding to the two points made by the father in opposing the motion. At the conclusion of her argument, counsel stated: “With that, I will submit, Your Honor.” The commissioner then heard from all other counsel, following which she announced her ruling. There was a hearing, as required by rule 5.570(f)-(h). There was nothing like a summary denial. Counsel should choose their words with more care. (See In re S.C., supra, 138 Cal.App.4th 396, 422 [“Disparaging the trial court is a tactic that is not taken lightly by a reviewing court.”].)
According to our Supreme Court, a person asking a court to declare him or her a presumed parent should expect that his or her “conduct before and after the child’s birth must be considered,” including how the person behaved during any legal proceedings. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849-850.) The court will be looking for proof that the parent “promptly [came] forward and demonstrate[d] a full commitment to . . . parental responsibilities—emotional, financial, and otherwise . . . .” (Id., at p. 849.) If, like C.J., the person is looking to subdivision (d) of Family Code section 7611, the expectation is strict: “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.” (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.) “[C]ommitment to the child is a key consideration.” (In re T.R., supra, 132 Cal.App.4th 1202, 1210.)
Although Kelsey S. and Michael H. were adoption cases, their reasoning is accepted as equally applicable to dependency and terminations proceedings. (E.g., In re Julia U. (1998) 64 Cal.App.4th 532, 541.)
Because there was a natural mother—a fact C.J. has never disputed—C.J. cannot satisfy several of the standard criteria, such as trying to marry the father or attempting to have her name entered on J.C.’s birth certificates. (See Fam. Code, § 7611, subds. (a), (b), (c)(1); In re A.A., supra, 114 Cal.App.4th 771, 787; see also Amy G. v. M.W., supra, 142 Cal.App.4th 1, 13 [cases allowing § 7611 to recognize a presumed mother “all involved circumstances where there was no competing claim to be the child’s mother”].) C.J. made no effort to care for J.C. during the initial dependency. There is no evidence that she paid, or offered to pay, for J.C.’s pre- and post-birth expenses. C.J. made no attempt to assume responsibility of J.C. until his natural mother was disqualified and lost custody of J.C. because of the initial dependency. Even then, her responsibility flowed from the order of the juvenile court appointing her J.C.’s guardian. It was only after respondent indicated it would strip her of her responsibility as guardian that C.J. moved to be named the presumptive mother—indeed, eight months later. And so far as the record reveals, C.J. never held J.C. out to others outside her family as her own son.
The only evidence C.J. submitted on this point was her own declaration and the bonding study. In her points and authorities supporting her motion, C.J. argued to the court: “[C.J.] consider[s] [J.C.] to be her son[,] refers to him as her son, introducing [J.C.] to all of her family and friends as her son. Jones Decl., ¶3. [C.J.’s] biological children D. ([age] 20), L. (18), R. (13) and K. (2) all consider J.C. to be their natural brother. Jones Decl., ¶3; See also Bonding Study, at 5. In addition, Ms. J[‘s] extended family members such as her father, mother, and cousins all consider J.C. to be Ms. J[’s] son and a member of their family. Jones Decl., ¶3. Thus, she has held him out to be her natural son.”
C.J.’s claim is ultimately reduced to her undoubted affection for J.C., and the fact that J.C. calls her “Momma.” But this was offset by the social worker and Dr. Van Horn both acknowledging that J.C.’s words should not be taken literally because even he was aware that someone else was his natural mother. And although it is not as dispositive as respondent views it, the fact that the juvenile court did know the identity of J.C.’s actual parents, and that neither had had their parental rights terminated, surely works against C.J.’s position. (See In re A.A., supra, 114 Cal.App.4th 771, 787 [“while the minor acknowledged that respondent has some sort of father status in her life, there is no indication she viewed him as a true family member. The record is clear that respondent lacks a ‘substantial familial relationship to the child. In such a case, the provision of [reunification] services does not “reunite” a family but creates a new one.’ ”].) In sum and in short, sometimes love is not enough. (See In re William B. (2008) 163 Cal.App.4th 1220, 1223 [“The juvenile court improperly focused on the children’s love for their mother rather than any realistic chance they would find permanency and stability with her.”].)
It is undisputed that C.J.’s performance as J.C.’s guardian was far from perfect, due to her substance abuse problems. But the adverse consequences and inferences cannot be minimized or neutralized merely by calling them “mistakes” or “stumbles,” as C.J. did at the contested hearing. It appears undisputed that during her guardianship C.J. succeeded in keeping her addiction from respondent’s knowledge. It is fair comment to characterize J.C. as virtually abandoned by C.J. immediately before he was taken out of her custody in October 2006. By that time, he was the victim of long-term neglect concerning his teeth and required vaccinations. If full commitment to the child is a key consideration (Adoption of Michael H., supra, 10 Cal.4th 1043, 1060; In re T.R., supra, 132 Cal.App.4th 1202, 1210), the juvenile court could treat C.J.’s inconsistent behavior as falling short.
We are assuming that C.J.’s 2007 acknowledgement of her 11-year addiction to heroin means that includes the 2002-2006 period of her guardianship. We are also assuming that respondent was unaware of her addiction.
Nor did C.J. do a turn-around when J.C. was detained from her custody. While she tested clean on all of the drug tests she took, she appears to have missed all of her tests from December 2006 through June 2007. Moreover, C.J. missed the last three appointments with her substance abuse counselor, which, according to Ms. Baker, “normally, that would cause her case to be closed. However, because [C.J.] called, they will give her a grace period.” Nevertheless, C.J. had a demonstrated history of denying her substance abuse issues, issues which had endangered J.C.’s health and well-being. C.J. was far from scrupulous in maintaining required contact with her social workers. The juvenile court was within its right as the trier of fact to treat C.J.’s situation as presenting an unacceptably high risk that she would again fail to conquer her substance abuse issues. (E.g., In re Brooke C. (2005) 127 Cal.App.4th 377, 382-383; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780.)
C.J. missed 40 percent of her scheduled visits with her daughter and J.C.. There was no evidence that C.J. had anything like the financial ability to support J.C.. And while all this was during the period C.J. was receiving services to reunify with her daughter, Ms. Baker told the court that C.J. had only “minimally participated” in the services offered. If reunification services already extended had not succeeded in helping C.J. to right her situation with her natural daughter, the juvenile court was not required to assume that additional services—which C.J. could seek as a presumed mother—would produce the opposite result. (Cf. Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 751 [“An abusive parent’s risk of recidivism is not necessarily limited to a child who was the parent’s previous victim. The parent may well pose a threat to his or her other children.”].) In light of the foregoing, there is substantial evidence that C.J. did not meet the standard that she “sufficiently and timely demonstrated a full commitment to . . . parental responsibilities.” (Adoption of Michael H., supra, 10 Cal.4th 1043, 1055, italics omitted; Adoption of Kelsey S., supra, 1 Cal.4th 816, 849.)
In her final report, Ms. Baker advised the court that C.J. “continues to reside with her mother . . . . She receives public assistance through transitional food stamps (for 3, including [two other daughters]), and General Assistance . . . .” (See fn. 7, ante.)
The foregoing analysis moots a number of ancillary claims by J.C. and C.J., starting with their contentions that respondent lacked standing to oppose C.J.’s motion, and the father’s opposition “should have been deemed irrelevant as a matter of public policy.” It also makes academic C.J.’s argument that the juvenile court “erroneously failed to order [reunification] services and a reunification case plan for C.J. as J.C.’s presumed mother” because when C.J. was determined not to be a presumed parent, there is no obligation to provide either services or a plan. (See In re Carlos E. (2005) 129 Cal.App.4th 1408, 1418-1419 [no requirement in dependency scheme for reunification services to guardian]; In re Merrick V. (2004) 122 Cal.App.4th 235, 251 [for guardian appointed by the juvenile court “the court would not have been required to offer reunification services before terminating her guardianship.”].)
Notwithstanding this conclusion, there is one collateral argument that needs to be addressed. C.J. contends that even if she was not entitled to reunification services, upon denial of her motion the juvenile court abused its discretion in not giving her so-called maintenance services as permitted by rule 5.740 of the California Rules of Court. J.C. presents a similar argument, but he claims the maintenance services should have been provided to preserve his relationship with C.J.’s natural daughter. We do not agree with either contention.
The cited rule specifies in pertinent part: “At the hearing on a petition to terminate the guardianship, the court may do any of the following: [¶] (A) Deny the petition to terminate guardianship; [¶] (B) Deny the petition and request the county welfare department to provide services to the guardian and the ward for the purpose of maintaining the guardianship . . .; or [¶] (C) Grant the petition to terminate guardianship.” Nowhere in this rule is the fourth option claimed by C.J., and vigorously asserted at oral argument, namely to grant the petition to terminate the guardianship and still order the former guardian to receive maintenance services. Moreover, neither C.J. nor J.C. ever raised the issue of such services to Commissioner Lyons. Thus, it appropriate to invoke the rule that a trial court cannot be held to have abused a discretion it was not requested to exercise. (E.g., Dimmick v. Dimmick (1962) 58 Cal.2d 417, 423; In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.) A second reason against finding abuse is that the juvenile court could not have been unaware of C.J.’s lack of success with services already provided her to reunify with her own daughter.
It appears that “maintenance services” is shorthand for “family maintenance services” (§ 16506), which are included within “child welfare services” (§§ 301, 16501). It further appears that they fulfill the function of reunification services in a situation where family reunification is not the objective. (See In re Michael S. (1987) 188 Cal.App.3d 1448, 1466-1468.)
In re Jessica C. (2007) 151 Cal.App.4th 474, does not compel a different result. There, the court stated: “In order to determine the children’s best interests, the court was obligated . . . to consider whether maintenance services . . . could have been provided to save the guardianship . . . . [T]he Legislature intended that the juvenile court at least consider whether services are available to ameliorate the need for modification of the permanent plan.” (Id. at p. 483.) We presume the court was aware of this option (see Evid. Code, § 664; In re Jacob J. (2005) 130 Cal.App.4th 429, 437-438) but chose not to elect it before deciding to terminate C.J.’s guardianship.
The Juvenile Court Did Not Abuse Its Discretion In Terminating C.J.’s Guardianship
J.C. and C.J. present several procedural and substantive arguments to support their contention that the juvenile court should not have terminated C.J.’s guardianship.
As noted, the juvenile court found that respondent “has evaluated, and the Court has considered, whether services could be provided to the Legal Custodian that would keep the child safe in her home.” J.C. argues that this finding is not supported by substantial evidence. Both J.C. and C.J. argue that because respondent did not prepare a report on that issue, as required by section 366.3, subdivision (b), and because respondent’s “recommendation was based on its policy rather than the facts of this case, the court necessarily ‘considered’ the availability of services without a sufficient record.” Finally, J.C. argues that “[t]he record is replete with evidence that it is in J.C.’s best interest to preserve his relationship with his only ‘momma,’ and sister [i.e., C.J.’s daughter]—and conversely, that terminating these family relationships will be harmful to him.” All of this, he contends, establishes that the court “abused its discretion and denied due process.” We are not persuaded.
Under a separate heading of his brief, J.C. also contends that “the trial court abused its discretion in failing to consider that its order also risked J.C.’s sibling relationship” with C.J.’s daughter. We consider this point addressed by our discussion, post.
First, J.C. and C.J. hint that it was somehow improper for the court to decide the guardianship issue while ruling on respondent’s section 388 petition. Not true. “Any application for termination of guardianship shall be filed in juvenile court . . . . Section 388 shall apply to this order of guardianship.” (§ 360, subd. (a).) The point is in any event academic because the juvenile also terminated the guardianship when ruling on respondent’s section 387 motion, a procedure this court has held is acceptable. (In re Carlos E. supra, 129 Cal.App.4th 1408, 1419, fn. 5, see also In re Jessica C., supra, 151 Cal.App.4th 474, 480-481.)
To begin with the report, neither C.J. nor J.C. objected to its absence at any point in the proceedings before Commissioner Lyons or Judge Hitchens. Thus, the issue may be deemed lost for purposes of appeal. (In re S.B., supra, 32 Cal.4th 1287, 1293; In re Elijah H., supra, 127 Cal.App.4th 576, 582.) Moreover, the absence does not appear prejudicial.
The report would undoubtedly have covered the same ground as the numerous social worker reports already before the court. Those reports, and the evidence produced at the contested hearing, covered the same ground as would the report, specifically, “whether the child could safely remain in, or be returned to, the legal guardian’s home, without terminating the legal guardianship, if services were provided to the child or legal guardian.” (§ 366.3, subd. (b).)
Reunification services had already been provided to C.J. in connection with her own daughter’s dependency. Yet the social worker concluded that C.J. had only “minimally participated” in those services, and was only grudgingly recommending six additional months of services. Moreover, one of the grounds for the section 387 petition was “The previous disposition has not been effective in the protection . . . of the child.” We cannot imagine the court granting this petition unless it agreed.
The evidence abundantly showed that C.J. had not surmounted her substance abuse issues, and was in no sense able in the near future to resume care of her own child, much less the additional responsibility for J.C.. It was for this reason that the social worker reported that respondent “cannot recommend providing reunification services for the minor J.C..” After examining the record, we cannot agree with C.J. that the court lacked “a sufficient record” to decide respondent’s petitions.
As for J.C.’s relationship with C.J.’s daughter, it was obviously covered in Dr. Van Horn’s bonding study. It also figured prominently in the court’s decision whether to grant C.J.’s motion to be named J.C.’s presumed mother, which was squarely based on that study. The relationship between J.C. and C.J.’s daughter was presumably thought not sufficiently important to justify granting C.J.’s motion. We cannot say it was so important in the context of the petitions that the same court was impotent to conclude it outweighed J.C.’s pressing need for a stable placement that did not include the daughter’s mother, that need being what the court concluded was in J.C.’s best interest.
A final word on this subject. When the court terminated C.J.’s guardianship, it also modified J.C.’s permanent plan from guardianship to “long term placement in the home of a relative.” We must presume the court was aware that the new permanent plan could not coexist with maintaining the guardianship. (See In re Carrie W. (2003) 110 Cal.App.4th 746, 760.) There was consequently no error in modifying the permanent plan at the same time that the guardianship was ended.
In light of the foregoing, we conclude that the challenged finding is more than amply supported by substantial evidence. There was no prejudicial error. And no violation of due process.
There Was No Constitutional Infirmity Or Violation In Either the Denial of C.J.’s Motions Or The Granting Of Respondent’s Motions
J.C. and C.J. present a number of purportedly constitutional arguments to overturn the denial of C.J.’s motion. To an understandable extent, their arguments overlap and are complementary. We summarize their general tenor.
J.C. contends that his “relationship with his ‘momma’ is entitled to substantive and procedural protection under the Fourteenth Amendment” because he has a fundamental liberty interest in preserving what he terms a “family-like bond.” He reasons: “Where (as here) a child has developed firm familial bonds with a caregiver with whom he was placed as the result of the biological parents’ inability or unwillingness to parent him or failure to establish a parent-child relationship and where the child would be harmed by severing that bond, the child has a fundamental and constitutionally protected interest in preserving those relationships.” (Citations omitted.) “Hence, . . . it was an error of law, an abuse of discretion, and a denial of due process for the juvenile court to fail to consider whether granting maintenance or reunification services could preserve this child’s relationship to his primary attachment figure.”
C.J. agrees with all this, but naturally sees it from the perspective of the once-and-future caregiver. She adds that “it is not constitutionally permissible to fail to recognize and fail to afford full rights and protection to this relationship given that the relationship also would be constitutionally recognized under Adoption of Kelsey S.[, supra, ] 1 Cal.4th 816 and Adoption of Michael H.[, supra, ] 10 Cal.4th 1043.” C.J. concludes that “the juvenile court’s failure to elevate [her] to presumed mother status is a deprivation of due process.”
The governing principles are well known:
“ ‘It is axiomatic that due process guarantees apply to dependency proceedings.’ [Citations.] The United States Supreme Court recognizes the concept of ‘due process’ cannot be precisely defined. [Citation.] In deciding requirements of due process, the courts evaluates three elements: the private interests at stake, the government’s interest, and the risk the procedures used will lead to an erroneous decision. [Citations.]
“The private interest at stake in a dependency proceeding is enormous. A parent’s interest in the companionship, care, custody and management of his or her children is a fundamental civil right. [Citation.] Children, too, have a compelling independent interest in belonging to their natural family. [Citation.] In addition, each child has a compelling interest to live free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver. [Citation.] The government interest in a child’s welfare is significant. ‘[T]he welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.’ [Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 222-223.)
Both C.J. and J.C. equate due process with their prevailing. As J.C. candidly puts it, “the juvenile court has severed the most fundamental relationship the child has without due process.” Yet C.J. and J.C. received due process. Each was represented by appointed counsel at all relevant times. C.J. was allowed to make her case for a continued relationship with J.C.. And she was allowed to present supporting evidence and argument at a public hearing. C.J. and J.C. had due process. They just did not win. “The Due Process Clause does not create a right to win litigation; it creates a right not to lose without a fair opportunity to defend oneself.” (Lane Hollow Coal v. U.S. Dept. of Labor (4th Cir. 1998) 137 F.3d 799, 807; accord, Consolidated Coal Co. v. Borda (4th Cir. 1999) 171 F.3d 175, 184.) Our Supreme Court has adopted the same approach, rejecting the notion that due process is a “heads-I-win, tails-you-lose procedure.” (Endler v. Schutzbank (1968) 68 Cal.2d 162, 168.)
DISPOSITION
The order is affirmed.
We concur: Kline, P.J., Haerle, J.
While that was the argument, in fact paragraph 3 of C.J.’s declaration states only this: “I consider J.C. to be my son and I refer to him as my son.” Page 5 of the bonding study simply has Dr. Van Horn’s observation that C.J., J.C., and C.J.’s natural daughter “operate as a family. They are interested in each other and cooperative with each other.” Thus, C.J.’s representation went far beyond the actual proof she submitted. Certainly this was not unequivocal proof establishing as a matter of law that C.J. openly and publicly admitted maternity. (Adoption of Michael H., supra, 10 Cal.4th 1043, 1051; In re T.R., supra, 132 Cal.App.4th 1202, 1211.)
Finally, the court’s denial of C.J.’s motion was the equivalent of determining that she had failed—as a matter of fact, not of law—to satisfy the foundational prerequisites established by subdivision (d) of Family Code section 7611 for presuming maternity. (See In re A.A., supra, 114 Cal.App.4th 771, 788; Evid. Code, §§ 500, 600, subd. (a).) Because the presumption was never activated, there is no need to take up C.J.’s argument whether that presumption was rebutted under Family Code section 7612 by one in favor of J.C.’s natural mother.