Opinion
NOT TO BE PUBLISHED
APPEAL from findings and orders of the Superior Court of Los Angeles County No. CK77319, D. Zeke Idler, Judge.
Nancy Rabin Brucker, under appointment by the Court of Appeal, for Objector and Appellant Justin H.
Office of the County Counsel, James M. Owens, Assistant County Counsel, Timothy M. O’Crowley, Senior Deputy County Counsel, for Plaintiff and Respondent.
MOSK, Acting P.J.
INTRODUCTION
Justin H., alleged father of eight-year-old Jorge A., appeals from the juvenile court’s denial of his request for paternity testing and its findings and orders made at the jurisdiction and disposition hearing. We affirm.
BACKGROUND
On November 2, 2008, the family came to the attention of the Department of Children and Family Services (Department) due to an allegation of general neglect of Jorge and his siblings. At the time, mother was living with James K., father of Jorge’s siblings. A voluntary family maintenance case was opened. At a team decision meeting on May 7, 2009, mother and James accused each other of using “crystal meth.” Mother failed to attend drugs tests on May 7, 2009, and May 8, 2009. Mother later admitted that she did not drug test because she had used “crystal meth” on May 7, 2009. On May 8, 2009, James tested positive for marijuana. James admitted smoking marijuana, but claimed to have a prescription for its use.
The May 20, 2009, Detention Report states that mother missed a May 7, 2008, drug test. The reference to 2008 instead of 2009 appears to be a typographical error.
On May 20, 2009, the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (a) and (b) alleging that mother and James had a history of domestic violence and illicit drug abuse, and they currently were using illicit drugs. The petition alleged under subdivisions (b) and (g) that Justin failed to provide Jorge with the necessities of life, including food, clothing, shelter, and medical care, and that Justin’s whereabouts were unknown.
All statutory citations are to the Welfare and Institutions Code unless otherwise noted.
The Department’s May 20, 2009, Detention Report states that mother identified Justin as Jorge’s father. Asked about Justin’s whereabouts, mother stated that the last she knew, Justin was in Concord Bay, California. Mother was not sure of Justin’s exact address or telephone number as she had not seen him or spoken to him since before Jorge was born. Mother stated that Justin had never been a part of Jorge’s life. The Department requested that a due diligence search for Justin be conducted.
The detention hearing was held on May 20, 2009. Justin was not present. Mother filled out a Paternity Questionnaire identifying Justin as Jorge’s father. The juvenile court found Justin to be Jorge’s alleged father and ordered the Department to conduct a due diligence search for Justin.
The Department’s June 23, 2009, Jurisdiction/Disposition Report states that Jorge and his siblings had been the subject of numerous prior reports to the Department. The reports concerned neglect, illicit drug use, domestic violence, and emotional and physical abuse by James and mother.
In connection with the report, a social worker interviewed mother. Mother stated that she had been a rebellious teenager. Mother ran away from home and stayed with a friend for a short time. Mother then entered the Job Corps program. While in the Job Corps program and attending school in Utah, mother met and became friends with Justin. Mother was 16 years old. After their program ended, mother and Justin reunited. Justin moved from San Francisco to live with mother in her home. During this time mother became pregnant. After two months, mother and Justin broke up and Justin moved back to San Francisco.
Mother told the social worker that Justin was aware she was pregnant but never took responsibility for Jorge and never wanted to establish a relationship with him. Mother stated that she called Justin when Jorge was born, and Justin said he did not want to have anything to do with Jorge. Mother stated that Justin had never paid any child support or attempted to contact Jorge.
Maternal grandfather told the social worker that he did not know where Justin, lived. The last he knew, Justin lived in San Francisco. Maternal grandfather said that Justin “has always known about Jorge but he never wanted to acknowledge him. When he left my house, my daughter was pregnant and he never helped her then. Once the baby was born, we called him from the hospital but he never took any responsibility. He has never paid for anything and we don’t know anything about him or where he lives.”
James told the social worker that he and mother had been in a relationship since 2002. James believed that mother was, for the most part, a good person who loved her children and took good care of them. However, when mother was taking drugs, she did not take care of the children, and her drug abuse caused problems between mother and James. James denied using drugs other than his prescription marijuana.
The Department’s due diligence search produced an address for Justin in Concord, California. On May 27, 2009, the social worker sent Justin notice of a hearing on the petition set for 8:30 a.m. on June 23, 2009.
At the June, 23, 2009, hearing, counsel was appointed for Justin, who was not present. Justin’s counsel informed the juvenile court that Justin had traveled through the night from San Francisco, but could not wait for the hearing and had to return immediately. Although the hearing was noticed for 8:30 a.m., it did not take place until the afternoon. The juvenile court noted that Justin had filled out a financial evaluation and Indian Child Welfare Act forms.
The date for the Reporter’s Transcript is June 27, 2009. This appears to be an error.
On Justin’s behalf, his counsel waived a reading of the petition and an advisement of Justin’s rights and entered Justin’s denial to the petition. Justin’s counsel informed the juvenile court that Justin requested a DNA test. The juvenile court asked counsel what Justin would ask for if the DNA was positive. Justin’s counsel responded, “it’s difficult to say. He apparently did not have any involvement with the child during the child’s life and it’s not clear when the news came to him that he was an alleged father, but it appears it was recent.”
The juvenile court asked mother when Justin first knew that she was pregnant. Mother stated that Justin knew when she was two months pregnant. Mother said that when Jorge was born, he almost died from a “complication.” Mother said she called Justin and told him that he might need to “come down here” for a transfusion. According to mother, Justin asked whether the baby was a boy or a girl. Mother informed Justin that the baby was a boy and Justin hung up on her.
The juvenile court denied Justin’s request for a DNA test. The juvenile court found that Justin was an alleged father, only; not a presumed father. The juvenile court denied Justin’s request, commenting as follows: “The D.N.A. test request is denied. This is an eight-year old, either he wants to step forward and be a father or not. Mom is saying he’s biological. If he tests positive, he’s biological gets to work up to presumed. Right now, if he does not want to be biological he’s alleged. He we can work up to presumed. So, I don’t know what purpose of the D.N.A. test will be at this point.”
The juvenile court asked if anyone was not ready to proceed on jurisdiction issues. Justin’s counsel responded that he did not know how his client wanted to proceed because Justin hoped to determine the “biological issue” first. The matter was continued to July 23, 2009, for an adjudication and contested disposition hearing.
In the Department’s July 14, 2009, Progress Report, the social worker reported that she interviewed Justin who stated that he and mother met in the Job Corps when they both were about 16 years old. After their program ended, they returned to their homes, but kept in contact. In May 2000, Justin’s mother required him to leave the house. Mother invited Justin to move in with her. Mother and a friend picked up Justin and took him to maternal grandfather’s home, where Justin remained for two weeks. During his stay with mother, Justin observed mother “using meth” and “drinking.” When mother was under the influence, she became violent with Justin. Justin and mother argued about mother’s substance abuse. Justin did not want to remain in maternal grandfather’s house, and, at Justin’s request, maternal grandfather drove him back to Concord.
Justin told the social worker that he had not heard from mother after he left maternal grandfather’s house and had not spoken to mother for nine years. Justin told the social worker that he did not think that Jorge was his son because the two weeks he spent with mother were in May, 2000, and that time frame did not fit with Justin’s birth (Justin was born in April 2001). Moreover, mother did not tell Justin about the child; did not keep in touch with him; and, when he resided with mother, mother told him that she was also involved with her ex-boyfriend. Justin told the social worker he wanted to make sure he was the father before he committed himself to anything.
Justin did not appear for the mediation or the adjudication and disposition hearing. At the adjudication and disposition hearing, Justin’s counsel stated that Justin lived outside the county and could not attend the hearing. Justin’s counsel stated that he spoke with Justin who “object[ed] to the pleading.” Counsel argued that there was insufficient evidence to support the counts against Justin, and there was no connection or nexus to the “protective issues.” Jorge’s counsel argued that the juvenile court should sustain a count against Justin under subdivision (b) of section 300 on the theory that if Justin had been involved with Jorge, he might “have been aware of things that were happening in this house with mother and would have been able to do something.”
The juvenile court sustained a count against Justin under subdivision (b) which it amended “according to proof.” The sustained count states, “The child Jorge [A.]’s father, Justin [H.] has failed to continually make his whereabouts known and involve himself in the child’s life which could have resulted in him being aware of the risk posed by the mother and her companion. Such failure to protect the child by the father endangers the child’s physical and emotional health, safety and well being and places the child at risk of physical and emotional harm and damage.” The juvenile court dismissed the count under subdivision (g) of section 300 against Justin.
The juvenile court sustained amended counts against mother and James under subdivision (b) of section 300, alleging that mother “has a history of illicit drug abuse and is a current user of methamphetamine,” and mother and James “have a history of domestic violence” including aggressive behavior by James in the children’s residence. The juvenile court dismissed the count under subdivision (a) of section 300 against mother and James.
Regarding disposition, the juvenile court noted that the Department recommended family reunification services for mother and James, but no reunification services for Justin. The juvenile court asked Justin’s counsel if Justin was seeking custody. Justin’s counsel stated that Justin had requested and was continuing to request a DNA test. The juvenile court asked, “So today is he seeking custody?” Justin’s counsel responded, “Your honor, his instruction to me is that he wanted to have that test before getting to this type of a question.” Shortly thereafter, the juvenile court asked Justin’s counsel what his position was regarding disposition. Justin’s counsel renewed Justin’s request for a DNA test. The juvenile court did not respond to the request.
The juvenile court placed Jorge and his siblings in the care, custody, and control of the Department for suitable placement with maternal grandfather. The juvenile court ordered family reunification services for mother and James. As for Justin, the juvenile court stated that Justin “is not a presumed father. He’s not seeking custody. There’s nothing to show it’s in the best interest of his child for him to be granted reunification services. The court is not exercising its discretion to grant him reunification services.” Justin’s counsel objected to the ruling. The juvenile court granted Justin monitored visitation with Jorge at least weekly, with the Department having discretion to liberalize the visits.
DISCUSSION
I. Justin’s Request For Paternity Testing
Justin contends that he has standing to appeal the juvenile court’s denial of his request for paternity testing, the juvenile court failed to comply with section 316.2 and rule 5.635 of the California Rules of Court (rule 5.635), and the juvenile court erred in failing to order paternity testing. We hold that Justin has standing to appeal, any failure to comply with section 316.2 and rule 5.635 was harmless, and the juvenile court did not abuse its discretion in denying Justin’s request for paternity testing.
A. Standing
Justin contends that he has standing to challenge the juvenile court’s denial of paternity testing because he took immediate steps to become a party once he was notified of the dependency proceedings. Respondent contends that Justin does not have standing, relying on In re Joseph G. (2000) 83 Cal.App.4th 712, for the proposition that “An alleged biological father who is not a party of record in the dependency court has no standing to appeal an order terminating parental rights.” (Id. at p. 716.)
In this case, Justin is a party to the dependency proceedings because he appeared in the proceedings and asserted a position. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1356; In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117 [in a case dealing with the concealment of the child from the father, a circumstance not present here, the court held that an alleged biological father has standing].) At the first hearing of which Justin had notice, Justin appeared through counsel and asserted a position—he denied the allegations in the petition and requested DNA testing to establish paternity. Justin drove overnight from San Francisco to appear personally at that hearing, but was unable to stay, apparently because the hearing that was scheduled for 8:30 a.m. did not take place until the afternoon. Justin also filled out a financial evaluation and Indian Child Welfare Act forms. Accordingly, Justin has standing to challenge the juvenile court’s denial of paternity testing.
B. Relevant Principles
1. The juvenile court’s failure to provide Justin with Judicial Council Form JV-505
Pursuant to section 316.2, subdivision (a), the juvenile court must inquire of the mother about the identity and address of all alleged fathers. If a man is identified as an alleged father, notice must be provided to the man that he is an alleged father, that the child is the subject of proceedings under section 300, and that the proceedings could result in the termination of his parental rights and adoption of the child. The notice must include Judicial Council form JV-505 – Statement Regarding Paternity. Rule 5.635(g) provides that the clerk must give notice of dependency proceedings to persons identified as alleged parents, including a copy of form JV-505.
Form JV-505 has “check boxes next to preprinted statements through which an alleged father can indicate his position with regard to paternity and representation by counsel. Concerning paternity, the form provides the alleged father with the following options: He can deny he is the father of the subject child; he can indicate he does not know if he is the father and can either consent to or request paternity testing; he can indicate he believes he is the child’s father and request that the court enter a judgment of paternity; or, he can indicate that he has already established paternity by either a voluntary declaration or a judgment of paternity. The Judicial Council form also contains an advisement to alleged fathers regarding reunification, the right to a court trial to determine paternity and the right to be represented by counsel at such trial. Further, the form instructs the alleged father: ‘If you wish the court to determine paternity or if you wish to admit that you are the father of the child, complete this form according to your intentions.’” (In re Paul H. (2003) 111 Cal.App.4th 753, 761.)
Pursuant to rule 5.635(e), when a child’s parentage has not previously been determined, the juvenile court must take appropriate steps to make such a determination. Form JV-505 must be made available in the courtroom and completed and submitted by an alleged father and his counsel. (Ibid.) To determine the child’s parentage, the juvenile court may order the child and alleged parent to submit to genetic testing or the juvenile court may make its determination of parentage or nonparentage based on the testimony, declarations, or statements of the alleged parent. (Ibid.) Under rule 5.635(h), if a person appears at a hearing in dependency matter and requests a judgment of parentage on form JV-505, the court must determine whether the person is the child’s biological parent and, if requested, whether the person is the child’s presumed parent.
The record contains a copy of the Department’s notice to Justin of the June 23, 2009, hearing. The notice does not reflect that Justin was provided with form JV-505. Even assuming that Justin was not provided with form JV-505, Justin was not prejudiced. Justin does not make a specific claim with respect to the juvenile court’s failure to provide him with form JV-505. Justin’s general claim on appeal is that the juvenile court erred in denying him paternity testing. In this context, any failure by the juvenile court to provide Justin with form JV-505 – a form that would have alerted Justin to his option to request paternity testing – was harmless because Justin’s counsel requested DNA paternity testing at Justin’s first appearance in the dependency proceedings at the June 23, 2009, hearing.
Moreover, any error with respect to the failure to provide Justin with form JV-505 was harmless because Justin could not have established his status as a presumed father. “[O]nly a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5. [Citation.]” (In re Zacharia D. (1993) 6 Cal.4th 435, 451; In re Joshua R. (2002) 104 Cal.App.4th 1020, 1025 [the question of biological paternity is irrelevant in a dependency case where the man would not qualify as a presumed father].) Only a presumed father is entitled to custody of his child. (In re Zacharia D., supra, 6 Cal.4th at p. 451; In re Joshua R., supra, 104 Cal.App.4th at p. 1025.) “Pursuant to Family Code section 7611, a man is presumed to be a child’s natural father if he was married to (or in an ‘attempted marriage’ with) the child’s mother during the child’s conception or birth (Fam. Code, § 7611, subds. (a)-(c)), or if he receives the child into his home and openly hold out the child as his natural child (Fam. Code, § 7611, subd. (d)).” (In re Joshua R., supra, 104 Cal.App.4th at p. 1025, fn. 2.) Justin does not assert that he was married to mother during Jorge’s conception or birth or that he has received Jorge into his home and openly held him out as his natural child. Nor is there evidence in the record that would support any such assertions.
In In re Joshua R., supra, 104 Cal.App.4th 1020, the court stated that there is an advantage to an alleged parent to establish parentage short of presumed status because a juvenile court has discretion to offer a mere biological father reunification services if it finds such services would benefit the child. (Id. at p. 1026, citing section 361.5.) Such an advantage is not in issue in this case. At the adjudication and disposition hearing, the juvenile court denied Justin reunification services, specifically finding that such services would not be in Jorge’s best interests.
2. The juvenile court’s denial of paternity testing
We review a juvenile court’s denial of a request for paternity testing for an abuse of discretion. (In re Joshua R., supra, 104 Cal.App.4th at p. 1029.) A juvenile court does not abuse its discretion in denying an alleged father’s request for paternity testing when the alleged father has not demonstrated a commitment to the child’s welfare. (Id. at pp. 1028-1029.) The trial court did not abuse its discretion in denying Justin’s request for paternity testing because Justin did not demonstrate a commitment to Jorge’s welfare. Implicit in the juvenile court’s denial of paternity testing is the acceptance of mother’s assertion that Justin has always known about Jorge and the determination that Jorge would not benefit from having Justin identified as his father. (See id. at p. 1028.)
Mother’s statements show that Justin was aware she was pregnant with and gave birth to Jorge but never took responsibility for Jorge and never wanted to establish a relationship with him. When mother called Justin after Jorge’s birth, Justin said he did not want to have anything to do with Jorge. Justin never paid child support or attempted to contact Jorge. Maternal grandfather’s statements corroborated mother’s statements that Justin knew about Jorge, did not take responsibility for him, and never helped him financially. Justin told a social worker that when he stayed with mother in her home, he observed her “using meth” and “drinking” and that she became violent with him when she was under the influence. Thus, the record shows that Justin failed to involve himself in Jorge’s life despite knowing that Jorge’s mother abused illicit drugs and alcohol and became violent when under the influence.
When the juvenile court asked Justin’s counsel what Justin would ask for if the DNA test was positive, Justin’s counsel acknowledged that Justin had never had any involvement with Jorge and stated that he was unable to say what Justin wanted. In initially denying Justin’s request for DNA testing the juvenile court observed, “This is an eight-year old, either [Justin] wants to step forward and be a father or not.” When the juvenile court addressed disposition, it noted that the Department recommended that Justin not receive reunification services and asked Justin’s counsel if Justin was seeking custody. Justin’s counsel stated that Justin wanted to resolve his parentage through DNA testing before he would take any position with respect to Jorge. Justin’s position concerning DNA testing did not manifest a commitment to Jorge’s welfare, but rather, it appears, to proving that Jorge was not his biological child.
Moreover, even if the juvenile court abused its discretion in denying Justin’s request for DNA testing, any such error was harmless because, as explained above, Justin could not have established his status as a presumed father. (In re Joshua R., supra, 104 Cal.App.4th at p. 1025.)
II. The Juvenile Court’s Jurisdictional Finding
Justin contends that the juvenile court’s jurisdictional finding that Jorge is a child described by section 300, subdivision (b), is not supported by substantial evidence. We disagree.
Respondent renews its contention that Justin lacks standing. For the reasons stated above, we hold that Justin has standing to contest the juvenile court’s finding of jurisdiction.
A. Standard of Review
On appeal, we review the juvenile court’s finding of jurisdiction for substantial evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) “The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. [Citation.]” (Ibid.) “The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) An appellate court does not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (Ibid.) Instead, the reviewing court draws all reasonable inferences in support of the juvenile court’s findings, considers the record most favorably to the juvenile court’s order, and affirms the order if it is supported by substantial evidence even if other evidence supports a contrary conclusion. (Ibid.)
B. Relevant Principles
A child will come within the jurisdiction of the juvenile court if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child....” (§ 300, subd. (b).) “The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
The count the juvenile court sustained against Justin contained an allegation that Justin had failed to protect Jorge by “fail[ing] to continually make his whereabouts known and involve himself in the child’s life which could have resulted in him being aware of the risk posed by the mother and her companion.” Justin argues that the jurisdictional finding is unsupported by substantial evidence because the juvenile court disregarded or did not consider his claims that mother never told him that she was pregnant, he had no knowledge of Jorge, mother was seeing another man during the two weeks he stayed in mother’s home, he moved out of mother’s home a year before Jorge was born, and he had not had contact with mother for nine years. Thus, Justin argues, the juvenile court’s ruling imposed a burden on him to maintain contact with an unknown child.
Implicit in the juvenile court’s jurisdictional finding are a rejection of Justin’s evidence that he did not know about Jorge’s birth and an acceptance of the evidence that Justin did know. Substantial evidence supports the juvenile court’s finding that Justin knew about Jorge. Mother told a social worker that Justin knew she was pregnant, that she called Justin when Jorge was born, and that Justin said he did not want to have anything to do with Jorge. Mother told the juvenile court that Justin knew she was pregnant when she was two months pregnant. Mother said she called Justin after Jorge was born because Jorge had a “complication” that might require a transfusion from Justin. According to mother, Justin asked whether the baby was a boy or a girl. Maternal grandfather told a social worker that mother was pregnant when Justin left his house and that Justin had always known about Jorge. Maternal grandfather stated that “we” called Justin from the hospital after Jorge was born, but Justin never took responsibility for Jorge.
Justin’s argument essentially asks this court to reweigh the conflicting evidence as to his knowledge that mother had given birth to Jorge. As an appellate court, we do not evaluate witness credibility, reweigh the evidence, or resolve evidentiary conflicts. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) Because substantial evidence supports the juvenile court’s implied finding, we reject Justin’s argument. (Ibid.)
Justin further argues that there was insufficient evidence that Jorge was ill or seriously injured, or at substantial risk of illness or serious injury because of anything he did or failed to do. Justin reasons that Jorge was involved in dependency proceedings because of the actions and negligence of mother and James, and that but for their conduct, there would have been no petition and no allegations against Justin.
Justin’s argument on this point demonstrates that substantial evidence supports the juvenile court’s jurisdictional finding. If Justin had made his whereabouts known and involved himself in Jorge’s life, he would have been in a position to see, and to take steps to protect Jorge from, the alleged conduct by mother and James that led to Jorge’s involvement in dependency proceedings and, ultimately, to a sustained petition against mother and James for that conduct.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
We concur: KRIEGLER, J., WEISMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.