Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court for Los Angeles County, Super. Ct. No. CK68693, Sherri Sobel, Referee.
Kimberly A. Knill, under appointment by the Court of Appeal, for Objector and Appellant.
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Respondent T.R.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Respondent J.G.
WILLHITE, Acting P. J.
G.C., the biological father of child J.G. (minor), appeals from the order of the juvenile court denying his Welfare and Institutions Code section 388 petition (section 388 petition). The petition requested that an order finding father J.G. (father) to be the presumed father of minor be vacated and replaced with a new order finding G.C. to be minor’s presumed father. We affirm the order denying the section 388 petition.
BACKGROUND
This case involves three adults who claim parentage of minor: minor’s mother, T.R. (mother), G.C., and father. Mother has two children, minor and R.R., who was seven years old at the time of the proceedings in this case. Mother met and started living with father in 2000 (when R.R. was three months old), and they married in 2003. That same year, father was convicted of possession of a controlled substance for sale, and was sentenced to four years in prison. He served two years and five months, and was released in March 2006.
G.C. met mother in January 2006, while father was in prison. G.C. and mother lived together, first in a motel and later at G.C.’s parents’ house, from early January 2006 until late April 2006. R.R. lived part of the time with mother and G.C., and part of the time with his maternal grandmother, B.R. (grandmother).
In early April 2006, G.C. took mother to a health clinic, where they discovered that mother was two and a half months pregnant. Over the next few weeks, G.C. took mother to several appointments with her doctor. At the end of April, mother told G.C. she was going to visit grandmother with R.R., and never came back. She left no forwarding address or telephone number. Two or three weeks later, G.C. saw mother at her uncle’s home, and she told him she was reconciling with father. She said that she and father were moving to San Diego, and refused to give him her address or telephone number.
Minor was born in November 2006. Father, who assisted mother with prenatal care from April until November, was at the hospital for the birth. Although he was aware that he was not the biological father, father signed a hospital declaration acknowledging paternity at minor’s birth. That same day, the Los Angeles Department of Children and Family Services (the Department) received a report that mother and minor tested positive for methamphetamines at minor’s birth. Before the Department could complete an investigation, however, mother and minor were released from the hospital, and the Department could not locate them.
Although G.C. learned of minor’s birth on the day of his birth, he did not see him until January 2007, when he was contacted by mother. She asked him for money so she could move to Bakersfield, and told him that she was having problems with father and wanted to leave him. G.C. offered to have mother and minor live with him, but mother refused his offer. Grandmother later called G.C. to tell him that mother was just trying to get money from him and that mother was still with father. Although mother did not allow G.C. any further visits with minor, G.C. remained in contact with grandmother, who began to bring minor to visit G.C. several times a week, starting in March or April 2007. On May 12, 2007, G.C. took a paternity test. The report on the paternity test, which is dated May 21, 2007, states there is a 99.9118 percent probability that G.C. is minor’s biological father.
On the evening of May 25, 2007, mother was arrested for violating parole. Before she was taken into custody, she gave minor to grandmother. G.C. spent the next two days with grandmother and minor. On May 28, minor came to live with G.C. Three days later, on May 31, G.C. filed in family court a petition to establish parental relationship, seeking physical and legal custody of minor, with no visitation for mother. In the meantime, on May 30, the Department received a referral regarding minor and R.R., alleging that minor was the victim of general neglect by mother (due to mother’s positive drug screen), and R.R. was the victim of physical abuse by father.
According to the social worker’s report, mother was on parole following a burglary conviction, and she violated parole by failing to comply with random drug testing and failing to check in with her parole agent.
There are conflicting accounts about how minor came to live with G.C. In his declaration filed in support of his section 388 petition, G.C. states that grandmother brought minor to his home to live with him. However, G.C. also submitted a declaration signed by grandmother in which grandmother crossed out the typewritten sentence stating that she brought minor to G.C. on May 28. In its place, she handwrote the following: “[G.C.] came to the motel where I live [on May 28] and showed me papers that said he had custody of the baby, who was to stay in his home and not be removed.”
The Department investigated the allegations of general neglect and physical abuse. It found the allegation of physical abuse by father was unfounded, but the allegation of general neglect by mother was substantiated. The Department removed both children from mother’s care due to her incarceration and drug use, and placed minor with G.C., and R.R. with father. On June 7, 2007, the Department filed a petition under Welfare and Institutions Code section 300, subdivision (b), alleging that mother’s drug use puts the children at risk of harm.
The original petition was dismissed when the Department subsequently filed a first amended petition that added counts related to father’s and G.C.’s substance abuse. Those additional counts ultimately were dismissed.
The detention hearing was held that same day, before Referee Steven L. Berman. Although G.C. was given notice of the hearing, he did not attend. Father attended the hearing and, through his appointed attorney, asked the court to designate him R.R.’s presumed father. The attorney noted that father was not requesting presumed father status for minor because he did not want to interfere with the relationship between G.C. and minor. Father’s attorney stated that father considered minor his son, although he understood that he is not the biological father, and that father requested visitation with minor. The court questioned father about G.C.’s relationship with minor. Father explained that minor had never lived with G.C., that G.C. never supported minor, and that G.C. had not spent any time with minor until grandmother started taking minor for visits with G.C. without telling father or mother. Based upon the information father provided, the court indicated that it believed G.C. was merely the biological father, and father should be minor’s presumed father. The court noted that the Department should not have placed minor with G.C., and that minor should be detained from G.C. and placed back with father, who the court found to be nonoffending.
In light of the court’s indication that it was going to find that father was minor’s presumed father and G.C. was merely the biological father, counsel for the Department suggested that the court appoint counsel for G.C. The court declined to do so, stating that it would appoint counsel for G.C. when he appeared in court. The Department then asked the court to find that G.C. is also a presumed father because he had taken steps to hold minor out as his child. The court found that even if G.C. qualified as a presumed father, under “the balancing test” the facts favored father because G.C. did not come forward at the earliest possible date to assert his relationship with minor. The court found father was the presumed father of both children, and G.C. was the biological father of minor. It ordered both children detained from mother, with minor also detained from G.C., and released to father. The court also ordered family reunification services for mother, father, and G.C., and monitored visitation for G.C. with minor.
A hearing to arraign mother, who was in custody and had not appeared at the initial detention hearing, was held the following week. G.C. also attended the hearing, and was appointed counsel. G.C.’s attorney challenged the court’s previous finding that father was minor’s presumed father. In response to that challenge, the court questioned G.C. about his relationship with mother and minor. G.C. admitted that he was not at the hospital when minor was born, was not married to mother, and had not paid child support (although he said he “buy[s] [his] son what he needs”). He said he could not provide support because he did not know where mother and minor were until April 2007, when grandmother started bringing minor to visit him (without mother’s knowledge). He explained that he had tried to find mother after minor was born, and asked grandmother to talk to mother on his behalf, but he could not do anything to assert his parental rights because grandmother told him that mother said she did not want G.C. to see minor and would kill him if he tried to take minor.
Mother informed the court at that hearing that she expected to remain in custody for no more than six months.
After considering G.C.’s responses to its questions, the court concluded that its finding that father was minor’s presumed father would remain. However, the court granted G.C. visitation so “[h]e can establish himself as presumed.” The court ordered that visitation be monitored in light of G.C.’s criminal history, including a January 2007 arrest for possession of a controlled substance.
G.C.’s criminal history includes several arrests, but only one conviction. In 2003, he was convicted for evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and sentenced to probation. In 1996, he was arrested for possession of a controlled substance and ordered to a drug diversion program under Penal Code section 1000. He also was arrested in 2001 for infliction of corporal injury on a spouse or cohabitant, and in 2005 for receiving stolen property and possession of controlled substance paraphernalia, but there were no convictions related to those arrests. As a result of his January 2007 arrest for possession of a controlled substance, he was once again ordered to a drug diversion program.
A month later, G.C. filed a form JV-505 Statement Regarding Parentage, requesting a judgment of parentage. Then, on August 3, 2007, he filed a section 388 petition, asking the court to change the June 7, 2007 order finding that he is only the biological father of minor. Describing the changed circumstances that support the petition, G.C. stated that the court did not have his JV-505 form when it made its initial determination that G.C. was not the presumed father, and that G.C. promptly attempted to assert his parental responsibilities but was unable to do so through no fault of his own.
In his declaration filed in support of his petition, G.C. stated that he tried to locate and/or contact mother about 20 times after she left in April 2006 through minor’s birth in November 2006. He remained in contact with grandmother, and on six or seven occasions he told grandmother that he would like to provide money and shelter for mother and the unborn child. Grandmother declined the offers of money, saying that mother would use the money to buy drugs.
G.C. stated in his declaration that on the day of minor’s birth, he received a call from a friend of mother’s family, telling him of the birth. He called the hospital, and was told by a nurse that he should not come to the hospital because father was there and it might not be safe. He first saw his son in January 2007. He asked mother to allow him to see minor again, but mother refused. In February 2007, he began giving grandmother clothes, bottles, pacifiers, baby shoes, and formula to give to minor because mother refused to accept any of the items directly from him. In late March, grandmother started to bring minor to visit with G.C. for an hour or two, three times per week. He would give minor food and clothing during those visits.
Finally, G.C. declared that he spent two days with grandmother and minor after mother was arrested on May 25, 2007, and that grandmother brought minor to his house on May 28 so that minor could live with him. He asserted that he has always held himself out as minor’s father and has told everyone that minor is his son.
G.C.’s petition was presented to the juvenile court at the contested jurisdiction/disposition hearing, before a new court officer (Referee Sherri Sobel). Although the court expressed reservations about the petition, it found the petition was sufficient to warrant a hearing. The court noted that if it finds there are two men who can be found to be presumed fathers, it must apply Family Code section 7612 (section 7612) to determine which father will be the presumed father. The court asked the parties to brief whether it should set aside the finding in favor of father and, if it applies the section 7612 weighing test, who should be the presumed father.
In response to the court’s request, G.C. filed a motion to vacate father’s presumed father status, supported by, among other things, grandmother’s declaration. Grandmother confirmed that G.C. stayed in contact with her after mother left him in April 2006, and offered to give her money for the unborn child and/or offered shelter for mother and the unborn child six or seven times. Grandmother also confirmed that in February 2007, G.C. began giving her clothes, bottles, pacifiers, baby shoes, and formula to give to minor, and that in March 2007 she started to bring minor to visit G.C. three times per week. Finally, although she confirmed that G.C. spent two days with her and minor after mother was arrested, she disagreed with G.C.’s account of how minor came to live with G.C. on May 28. Although G.C. declared that grandmother brought minor to his house to live with him, grandmother declared that G.C. came to her with papers that he asserted gave him custody of minor.
At the hearing on the section 388 petition, the juvenile court found that G.C. did not qualify as a presumed father under the statutory criteria, but even if he did, under the section 7612 balancing test, the court would find father to be the presumed father. Therefore, the court denied the petition and ordered that there be no further contact between G.C. and minor unless mother and/or father allows it. G.C. appeals from the order denying his section 388 petition.
DISCUSSION
On appeal, G.C. argues that he qualified as a presumed father because he met the standard set forth in Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), and that the juvenile court abused its discretion by finding father, rather than him, the presumed father. Father and mother argue that (1) G.C. did not meet the Kelsey S. standard; (2) even if G.C. could meet the standard, Kelsey S. would not apply because father and mother were married at the time of conception and birth of minor; (3) even if G.C. were found to be a Kelsey S. father, he would not qualify as a presumed father; and (4) in any event, the juvenile court applied the weighing test under section 7612 and did not abuse its discretion by choosing father as the presumed father. We need not determine whether Kelsey S. applies or whether G.C. met the Kelsey S. standard and therefore met the criteria for presumed father status because even assuming the standard was met and applies here, the juvenile court’s determination that on the facts of this case father was the presumed father was not an abuse of discretion and therefore the court properly denied G.C.’s section 388 petition.
We begin with a brief overview of the law regarding presumed father status and parental rights. A father may be “alleged,” “biological,” or “presumed.” (Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 857 (Gabriel P.).) An alleged father is one “whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status.” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) A biological father “is one whose biological paternity has been established, but who has not achieved presumed father status.” (Ibid.) To become a presumed father, a man must meet certain conditions. (Fam. Code, § 7611.) If a man is married and cohabitating with the mother of the child, he is conclusively presumed to be the father of the child. (Fam. Code, § 7540.) If a man signs a voluntary declaration of paternity at the time of the birth of a child, or if he falls within at least one of several categories set out in Family Code section 7611 (section 7611), there is a rebuttable presumption that he is the father. “Although more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, ‘there can be only one presumed father.’ [Citations.] How those competing presumptions are to be reconciled is set forth in section 7612: . . . ‘(b) If two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.’” (In re Jesusa V. (2004) 32 Cal.4th 588, 603.)
Only two categories are at issue in this case: section 7611, subdivision (a), which applies when the man and the mother were married to each other at the time of birth, and subdivision (d), which applies when the man “receives the child into his home and openly holds out the child as his natural child.”
The distinction between a biological father and a presumed father is important, because presumed fathers have far greater rights than biological fathers. (In re Zacharia D., supra, 6 Cal.4th at pp. 448-449.) Only a presumed father is entitled to custody of the child or reunification services in a dependency case. (Id. at p. 451; see also In re Jesusa V., supra, 32 Cal.4th at p. 610.) The biological father’s parental rights are not, however, terminated when another man is declared the presumed father; termination of parental rights requires further proceedings not at issue in this case. (In re Jesusa V. at p. 610.)
Although a biological father is not entitled to reunification services, the juvenile court may in its discretion order services for him and the child “if the court determines that the services will benefit the child.” (Welf. & Inst. Code, § 361.5, subd. (a).)
An issue arises when a mother unilaterally prevents an unwed father from establishing a relationship with his child, thus preventing him from satisfying the statutory criteria for a presumption of paternity. The Supreme Court first addressed this issue in Kelsey S., supra, 1 Cal.4th 816, an adoption case in which the unwed father was prevented from becoming a presumed father, and his parental rights were terminated to allow the child to be adopted (only presumed fathers had the right to impede adoptions by withholding consent). The Supreme Court held that, “[i]f an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise -- his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Id. at p. 849.) Subsequently, in In re Zacharia D., supra, 6 Cal.4th 435, the court noted that a similar issue could arise in the dependency context: “The issue would arise therefore, under facts not presented here, whether the statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S. Extending Kelsey S. to apply in the dependency context would allow such a father to participate as a ‘parent’ in, or end the need for, the dependency proceedings.” (Id. at p. 451.) Because the biological father did not satisfy the Kelsey S. criteria in that case, however, the court declined to address the issue. (Ibid.)
A question remains whether a father who satisfies Kelsey S., supra, 1 Cal.4th 816, necessarily has presumed father status requiring the court to engage in the weighing process set forth in section 7612 if there is another person who satisfies the section 7611 criteria for a presumption of paternity. In a case decided by this court, Gabriel P., supra, 141 Cal.App.4th 850, a man who believed he was the biological father of a child born to a woman who was married at the time of birth but not at the time of conception brought a paternity action. The trial court found that the man did not satisfy the statutory criteria for the presumption of paternity, but he did satisfy the Kelsey S. criteria, and therefore he was entitled to establish his paternity. (Id. at p. 860.) After genetic testing established that the man was the biological father of the child, the trial court set aside the mother’s husband’s voluntary declaration of paternity and rejected the husband’s claim to be the child’s presumed father. (Id. at pp. 861-862.) We held that the trial court erred by failing to weigh the relevant factors under section 7612 to determine whether the husband nevertheless should be declared the child’s presumed father. (Id. at p. 864.)
We did not in Gabriel P., supra, 141 Cal.App.4th 850, address whether a biological father who satisfies the Kelsey S. criteria necessarily satisfies the criteria for presumed father status in the context of a dependency case. Two recent appellate cases addressing this issue came to opposite conclusions. In In re J.L. (2008) 159 Cal.App.4th 1010, Division One of the First Appellate District held that a biological father who satisfied the Kelsey S. criteria had standing as a presumed father to challenge the mother’s boyfriend’s voluntary declaration of paternity. The court explained, “[a]lthough section 7611 makes no provision for a Kelsey S. father in its list of presumptions, a father asserting valid Kelsey S. rights may effectively qualify for presumed father status as the result of his constitutional right to parent, which overrides any contrary statutory direction.” (Id. at p. 1023.) But in In re Vincent M. (2008) 161 Cal.App.4th 943, a case from Division Five of this District, the majority concluded -- over a vigorous dissent that cited to In re J.L., among other cases (id. at pp. 965-966) -- that the Supreme Court did not hold that a Kelsey S. father had presumed father status in a dependency case. (Id. at p. 957.) The Supreme Court denied review in both cases.
Even if we were to agree with the court’s holding in In re J.L., supra, 159 Cal.App.4th 1010, that a Kelsey S. father generally qualifies for presumed father status in a dependency case, an additional issue arises when the mother of the child at issue was married at the time of conception and birth. In Dawn D. v. Superior Court (1998) 17 Cal.4th 932 (Dawn D.), the Supreme Court held -- in a paternity action -- that a biological father who met the Kelsey S. criteria did not have a constitutionally protected liberty interest in being allowed to form a parental relationship with a child born to a woman who was married to another man at the time of conception and birth. (Id. at p. 944.) In that case, as in this case, the biological father had a relationship with the mother while she was separated from her husband. The mother left the biological father and returned to her husband after she became pregnant, and when the child was born, the husband received the child into his home and held himself out as the child’s father. But unlike this case, the issue presented to the court in Dawn D., which involved a paternity action in family court, was whether the standing rule set forth in Family Code section 7630 -- which provides that only the child, the child’s mother, or a presumed father under section 7611 may bring an action to determine the existence of a father and child relationship -- may constitutionally be applied to preclude an alleged biological father from establishing his paternity of a child. We have found no case that addresses whether the holding in Dawn D. applies in a dependency case to preclude a biological father of a child conceived and born while the mother was married to another man from attempting to establish a relationship with the child.
We note that In re Jesusa V., supra, 32 Cal.4th 588, involved a biological father of a child born to a mother who was married to another man at the time of conception and birth, but both the biological father and the husband had an existing relationship with the child at the time of the dependency proceeding. Therefore, both men qualified as presumed fathers under section 7611.
Although the parties in the present case raise questions about whether Dawn D., supra, 17 Cal.4th 932, precludes G.C. from challenging the declaration that father is minor’s presumed father, or whether, if G.C. satisfies the criteria set forth in Kelsey S., supra, 1 Cal.4th 816, he qualifies for presumed father status, we need not resolve them here. We will assume for the purposes of this appeal that Dawn D. does not apply, and that a Kelsey S. father qualifies for presumed father status. We also will assume, without deciding, that G.C. satisfied the Kelsey S. criteria. We nevertheless affirm the juvenile court’s finding that father is minor’s presumed father because the court properly weighed G.C.’s and father’s interests and determined that the presumptions that father relied upon carried more weight.
Even though the juvenile court found that G.C. had not established that he was a Kelsey S. father, and questioned whether he would qualify for presumed father status even if he had, it nevertheless weighed the relevant factors under section 7612 and concluded that father’s interest outweighed G.C.’s interest. We find no abuse of discretion. (See In re Jesusa V., supra, 32 Cal.4th at p. 607 [applying abuse of discretion standard of review].) The court found that father was married to mother and had accepted minor as his own and raised him, along with minor’s half-brother, R.R., since minor was born. It correctly noted that there is a strong societal interest in protecting intact marital families. (See, e.g., Dawn D., supra, 17 Cal.4th 932.) In contrast, G.C. had no relationship with minor for the first half of his life and did nothing to legally establish his paternity until after minor was removed from mother’s custody. The court also noted that, since the start of the dependency proceedings, G.C. and his family made repeated accusations that minor had been abused, which required minor to be subjected to repeated examinations, but no evidence of abuse was ever found. In light of these facts, the court’s conclusion that father is the appropriate presumed father under section 7612 was not an abuse of discretion. Accordingly, the court’s denial of G.C.’s section 388 petition seeking to vacate the order giving father presumed father status must be affirmed.
DISPOSITION
The order denying the section 388 petition is affirmed.
We concur: MANELLA, J. SUZUKAWA, J.