Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK69500, Stephen Marpet, Juvenile Court Referee.
Andre F.F. Toscano, under appointment by the Court of Appeal, for Appellant J. P.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Denise M. Hippach, Associate County Counsel for Respondent.
EPSTEIN, P. J.
J.P., the alleged father of child J.P., appeals from denial of his petition under Welfare and Institutions Code section 388 in this dependency proceeding. He argues the court abused its discretion by denying the petition without a hearing and that we must reverse because of that error, which would compel vacation of a subsequent order terminating his parental rights. We find no abuse of discretion in denial of the petition without a hearing, and deny J.P.’s second argument for that reason.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
Child J.P. was living with his mother in a sober living home in August 2007 when the Department of Children and Family Services (the Department) received a referral that mother was unable to care for the child due to her extreme intoxication. Mother had returned to the sober living house in such an extreme state of intoxication that she had to be hospitalized. The child was detained and placed in foster care. Mother told a social worker that she had not had contact with the child’s father for over a month, and that she believed he was incarcerated. According to mother, father had a history of cocaine use. The social worker confirmed that father had been arrested on July 26, 2007, and was incarcerated.
The Department filed a petition pursuant to section 300, subdivision (b) on behalf of the child. At the detention hearing, mother testified that J.P. was the father, they were neither married nor living together when the child was born, his name is not on the child’s birth certificate, he had not supported the child financially, and had never taken the child into his home and treated him as his own. Mother testified that there was no one else who could be the father. Father’s attorney notified the court that his client was the subject of a child support proceeding brought by the District Attorney. Father, who was present, told the court he had not made any support payments. The court concluded that J.P. appeared to be a biological, alleged father. Father said he was not present at the child’s birth. The child was detained, father’s visits were to begin upon his release from custody. Reunification services were ordered for both parents, including drug testing and individual counseling.
The Department’s report prepared for the September 21, 2007 jurisdictional hearing stated that father had been released from jail a month earlier, but his whereabouts were unknown. Paternal relatives had not had contact with father in months, and reported that he became addicted to drugs while in college and had tried a number of treatment programs but had relapsed.
Father did not appear at the jurisdictional hearing. The court sustained the petition as written. Father’s whereabouts were still unknown when the Department prepared its disposition report. Father had not visited the child. The Department recommended no family reunification services be provided to the parents. Neither mother nor father appeared for the dispositional hearing. Father’s attorney reported that her client had left messages stating that he was in a rehabilitation program with a 30-day restriction from leaving the facility. Father stated that otherwise he would have been present because he wanted a chance to raise his child and take responsibility for him.
The court rejected counsel’s request to delay the hearing so father could be present on the ground that father had only alleged father status and was not entitled to reunification services. The child was declared a dependent of the court pursuant to section 300. Reunification services were denied to father under section 361.5, subdivision (a). A permanent planning hearing under section 366.26 was set for February 2008.
A Multi-Disciplinary Assessment Team (MAT) report prepared in October 2007 stated that father was unavailable for interview. Father’s cousin, with whom the child was placed, said she had not heard from father in a long time, and finally heard from him the week the MAT assessment was completed. Father recently had contacted the Department and requested visits with the child.
On January 9, 2008, father filed a motion to set aside the adjudicatory and disposition findings and set a new pretrial conference date on the ground that he had been reincarcerated at the time of the adjudicatory hearing and did not have the opportunity to appear. In February 2008, father filed a petition pursuant to section 388 asking the court to modify its previous orders finding him to be an alleged father not entitled to services and sustaining the petition as pled. He alleged the following changed circumstances: “1) Father has held himself out to be the father of the child by having regular visitation with the child & by attending a parenting class, participating as a resident in a residential substance abuse program, which composes an individual counseling component, & by drug testing negative. 2) It was later discovered that father was incarcerated at the time of the pre-trial conference, so was prevented from attending the hearing.” He asked the court to find that he is a presumed father, order family reunification services, set aside previous rulings, and set the matter for adjudication. Father said the child would “benefit from father’s love, care, and support, both emotionally and financially, and child will develop self-esteem in knowing that his father loves him and fought for him.”
Father submitted a declaration in support of his petition. In it, he declared that he had been in a voluntary residential substance abuse program since October 2007, where he had completed a parenting program, and participated in individual and group counseling as well as 12-step meetings. His drug tests had been negative and he had visited with the child every weekend since October with two exceptions when the caretaker had other plans. Father described his visits: “During my visits with [the child], I feed him and change his diapers, I walk with him and talk to him and sing to him while I am holding him, when he was learning to walk I helped him practice, and when he began to walk on his own, he began to walk into my arms; he is starting to talk and he occasionally says ‘Da Da,’ and often says ‘eat.’” According to father, when the child sees him, he smiles, and when father drops to his knees, the child walks into his arms and appears very comfortable. Father said he planned to transition to sober living family housing which is designed for parents and their children in the near future. He then would look for steady employment so he could support his son. Father attached letters confirming his treatment, but noting that he had two pending criminal cases.
The court denied the petition on the ground that it was not in the best interest of the child. The Department’s report for the permanent plan hearing stated that the child was still placed with a paternal cousin, who wanted to adopt him. It noted that father had visited weekly since October. The Department recommended termination of parental rights for both parents and that the child be freed for adoption by the caregiver.
Father attended the permanent plan hearing. After conferring with her client, counsel for father argued that father had never had an opportunity to be with the child since mother was in a rehabilitation program when the child was conceived, born, and detained. The court noted that father had not supported the child, had not taken him into his home, had not treated him as his own, and was an alleged father not entitled to services. Counsel for father argued that father did not have the ability to hold himself out as the child’s father, but believed himself to be the father. Father spoke up, saying he had supported mother through rehabilitation, and never had the opportunity to be a father. He said he was now clean and sober, and trying to do what was best for his family. The court denied father’s motion to set aside the findings.
Counsel for father asked whether the court had ruled on the section 388 petition. The court asked whether there was a motion under that section. Counsel for the Department indicated that she had not received the section 388 petition. The court asked whether the section 388 petition was on the same grounds as the motion to set aside the rulings. Counsel for father said it was, as well as the alleged father status. The court said: “I have read and considered that document [the section 388 petition], and I denied it yesterday after reading it. The 388 is denied. It is not in the minor’s best interest, and . . . father is nothing more than an alleged father.” Counsel for father argued her client was denied the right to be heard at the pretrial resolution conference hearing. The court repeated that as an alleged father, her client was not entitled to services. After a discussion of the dates on which father was incarcerated, the court denied the section 388 petition.
The court found by clear and convincing evidence that the child was going to be adopted, and terminated mother’s parental rights. The court denied a request by counsel for father for a contested section 366.26 hearing under former subdivision (c)(1)(A) because the father’s monitored visits with the child did not demonstrate the requisite relationship. Father’s parental rights were terminated. This appeal followed.
DISCUSSION
I
Father argues the trial court abused its discretion by denying his section 388 petition without a hearing. He contends that the petition was the proper procedure to seek presumed father status. We review summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454.)
Section 388 provides, in relevant part: “(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall . . . set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. [¶] . . . [¶] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, . . ., the court shall order that a hearing be held and shall give prior notice, . . .” The parent need make only a prima facie showing to trigger the right to a full hearing. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432.)
Father asserts that he “made [an] undisputed showing of changed circumstances and that it would be in the [child’s] best interest to grant a hearing in father’s petition. During this case, father was able to elevate himself to presumed father status through his consistent visits with [the child] at father’s residential treatment program since October 2007. Also, father was committed to his own rehabilitation and [the child’s] care. Thus, [the child] would benefit from reunifying with his father.”
“A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status as defined in Civil Code section 7004. (In re Baby Girl M. (1984) 37 Cal.3d 65, 72, fn. 5, superseded on other grounds by statute; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 823, fn. 3.) A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an ‘alleged’ father. (See In re Shereece B. (1991) 231 Cal.App.3d 613, 620-621.)” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)
The distinction between the rights of a man who is an alleged, rather than presumed father is significant. “‘[O]nly a presumed, not a mere biological, father is a “parent” entitled to receive reunification services under section 361.5.’ ([In re] Zacharia D., supra, 6 Cal.4th at p. 451.) ‘“[P]arental rights are generally conferred on a man not merely based on biology but on the father’s connection to the mother [and/or] child through marriage (or attempted marriage) or his commitment to the child.”’ (Id. at p. 449.)” (In re Vincent M. (2008) 161 Cal.App.4th 943, 954.)
A natural father may become a presumed father if “[h]e receives the child into his home and openly holds out the child as his natural child.” (Fam. Code, § 7611, subd. (d), see In re Phoenix B. (1990) 218 Cal.App.3d 787, 790, fn. 3 [construing predecessor statute, presumed father status achieved when alleged father “came forward when the Department instituted dependency proceedings, offered to care for his daughter, took her into his home and . . . held her out as his child”].) A petition under section 388 is the proper vehicle to seek a change in status. (In re Vincent M., supra, 161 Cal.App.4th at p. 955.) “The section 388 petition will not be granted unless there are changed circumstances or new evidence demonstrating it is in the child’s best interest to grant reunification services or custody.” (Ibid., citing In re Zacharia D., supra, 6 Cal.4th at pp. 454-456 .)
Father argues that he satisfied this requirement because he took the child into his residential treatment program which was his home at the time, and where the child visited each week. Father cared for the child during these visits. In addition to his commitment to the child, father cites his voluntary enrollment in drug treatment, compliance with all aspects of his program, and completion of parenting education and counseling. The child was one year old, and had been placed only seven months.
The Department argues that father did not make a prima facie showing of changed circumstances to require a hearing on his section 388 petition. It contends that weekly visits and recent sobriety were not enough to qualify as changed circumstances. The Department cites Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051, which held “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.”
The Supreme Court refused to recognize constructive receipt of a child into a man’s home in Adoption of Kelsey S., supra, 1 Cal.4th 816, 828-830. (See also Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 937.) Here, father did not have a home to which he could bring the child because he either was incarcerated or in a residential treatment program during this proceeding. Father argues that the child’s visits with him at the residential treatment program satisfied the requirement that he bring the child into his home, but cites no authority for that proposition. We conclude that visitations at a residential treatment program do not satisfy Family Code section 7611, subdivision (d) and that father failed to make a prima facie showing that his status should be changed to that of a presumed father. Under these circumstances, he was not entitled to a hearing on his section 388 petition.
We also find no abuse of discretion in the dependency court’s conclusion that father failed to show that his section 388 petition was in the best interest of the child. The child was only one year old. His only relationship with father had been weekly visits at the treatment program between October 2007 and February 2008. The child was bonded with his caregiver, and doing well in her home. The caregiver wanted to adopt him.
Father’s only challenge to the order terminating his parental rights was that the erroneous denial of his section 388 petition compels vacation of that order. Since we have concluded the court did not err in denying the petition, we affirm the order terminating father’s parental rights.
DISPOSITION
The orders denying father’s section 388 petition and terminating his parental rights are affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.