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In re K.A.

California Court of Appeals, Fifth District
Feb 9, 2011
No. F060276 (Cal. Ct. App. Feb. 9, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Tulare County No. JJV064456, Charlotte A. Wittig, Commissioner.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

CORNELL, J.

K.A. was born in 2006. Mother was neither married nor was she living with anyone at the time K.A. was conceived and born. When mother applied for public assistance, she named either S.A. or E.K. as K.A.’s biological father. After the Tulare County Department of Child Support Services (DCSS) obtained a default judgment requiring S.A. to pay child support, S.A. began a campaign to obtain visitation and/or custody of K.A. Because of allegations of abuse made by S.A., the Tulare County Health and Human Services Agency (the Agency) filed a petition pursuant to Welfare and Institutions Code section 300 alleging that K.A. came within the provisions of that section.

The juvenile court eventually determined that S.A. was not K.A.’s biological father, vacated the judgment requiring him to pay child support, and concluded he was not K.A.’s presumed father. S.A. argues the juvenile court’s order finding he was not the presumed father of K.A. was not supported by substantial evidence. We disagree and affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

The Support Case (No. VFS072268)

After K.A. was born, S.A.’s involvement in K.A.’s life was described as sporadic until 2008 and nonexistent for a period of time. S.A. occasionally would provide diapers, clothing, or a gift.

In 2008 S.A. became more active in K.A.’s life, as we shall explain. The action that apparently triggered S.A.’s increased activity occurred in April 2008 when DCSS filed a complaint seeking to establish that S.A. was K.A.’s parent and to collect child support from him in the amount of $192 per month. In July 2008, when S.A. failed to appear in the action, DCSS requested and received a default judgment, which ordered S.A. to pay child support in the amount of $192 per month, retroactive to April 2008. S.A.’s government assistance checks subsequently were garnished.

The Custody Case (No. VFL230404)

The garnishment caused S.A. to take action. On November 10, 2008, he filed a petition to establish a parental relationship with K.A. S.A. alleged in the petition that mother did not have any income and was a drug addict and a prostitute. He sought both legal and physical custody of K.A. Mother filed a responsive declaration objecting to the petition. The parties eventually mediated their dispute, and on February 6, 2009, an order was signed by the family court awarding the parties joint legal custody, with mother retaining primary physical custody, and awarded S.A. visitation.

Two months later, S.A. filed a modification of the February 6 order in which he sought full custody of K.A. He alleged that mother had failed to comply with the previous court orders, was using drugs, was prostituting herself, had no place to live, and had committed other acts that placed K.A. in jeopardy. The hearing on S.A.’s request occurred on May 8, 2009. Mother did not appear. S.A. was awarded legal and physical custody of K.A. S.A. apparently obtained custody of K.A. on this date.

One week later mother filed a request to modify the May 8 order and sought resumption of K.A.’s custody. She alleged in her supporting declaration that she had never been served with notice of the prior hearing and had turned custody of K.A. over to S.A. only because he called the police. Mother claimed that S.A. was doing everything he could to terrorize her and asserted his actions in seeking to retain custody of K.A. were motivated by his desire to maintain a relationship with mother. On May 26, 2009, the family court granted mother’s request and returned to mother the physical and legal custody of K.A. S.A. did not appear at this hearing.

Five days later S.A. responded by seeking a modification of the May 26 order, alleging he had not been properly served with notice of the hearing because the clerk sent the notice to the wrong address. He also alleged, in addition to the previous allegations about mother, that mother might be bipolar, was making death threats against S.A.’s family, and might be under investigation by the police. On July 2, 2009, with both parties present, the family court ordered physical custody of K.A. to remain with mother, with mother and S.A. sharing legal custody. S.A. was granted visitation.

Three months later S.A. filed another request to have the custody order modified. This time he alleged that mother did not have a home, K.A. had been abused and molested, and mother was concealing the whereabouts of K.A. from him. S.A. sought full custody of K.A. The clerk sent notice to mother, but she failed to appear. On November 20, 2009, the family court awarded physical and legal custody to S.A. and issued a bench warrant for mother’s arrest, despite the lack of personal service.

The Dependency Case (No. JJV064456)

S.A.’s repeated allegations that K.A. was being molested attracted the attention of the Tulare Police Department. When mother did not cooperate in the investigation and made allegations that S.A. was molesting K.A., the case was turned over to the Agency, and K.A. was detained.

The juvenile court eventually took the lead in the three pending cases to resolve the dispute regarding parentage. By the time the juvenile court made its decision, DNA testing of S.A., E.K., mother, and K.A. established that E.K. was K.A.’s biological father, and S.A. was not. The juvenile court also had before it the declarations of mother, S.A., and E.K. regarding the various claims of paternity.

Mother declared that she was not married when K.A. was conceived and was not living with any man. No father was listed on K.A.’s birth certificate. Mother informed DCSS that either S.A. or E.K. could be the father when she applied for assistance. After K.A. was born, S.A. saw K.A. occasionally until she was approximately two years old. At that time, S.A. lost his job and did not visit with K.A. until the custody proceeding was instituted. When S.A. visited, he would come from his home in Northern California and spend a weekend with K.A. in a motel. S.A. also had custody of K.A. in May 2009 when the family court issued an order so providing in the custody proceeding. S.A. did not support K.A. except through garnishment of his government assistance checks.

S.A. stated in his declaration that (1) there was a judgment of paternity in the support case; (2) he had been paying child support since it was ordered by the family court; (3) he had always acknowledged K.A. as his daughter; (4) he had executed a voluntary declaration of paternity; and (5) he had volunteered to have his name added to K.A.’s birth certificate. He claimed the only time he had custody of K.A. was in May 2009 when the family court awarded him custody.

The juvenile court concluded that S.A. was not K.A.’s biological father, nor was he K.A.’s presumed father, and set aside the judgment of paternity, ordered cessation of garnishment from S.A.’s government checks, dismissed S.A. from the dependency proceeding, and dismissed (denied) his paternity petition.

DISCUSSION

S.A. contends the order denying him presumed father status was not supported by substantial evidence.

To obtain presumed father status, S.A. was required to meet one of the conditions set forth in Family Code section 7611. S.A. asserts he achieved presumed father status under section 7611, subdivision (d) (hereafter section 7611(d)), which states that a man is presumed to be the father of the child if “He receives the child into his home and openly holds out the child as his natural child.” In dependency cases, the purpose of section 7611 is to facilitate a determination of “whether the alleged father has demonstrated a sufficient commitment to his paternal responsibilities to be afforded rights not afforded to” biological fathers. (In re Jerry P. (2002) 95 Cal.App.4th 793, 804.)

All further statutory references are to the Family Code unless otherwise noted.

S.A. had the burden in the juvenile court of establishing by a preponderance of the evidence the two elements necessary to invoke the presumption of paternity: (1) he received the minor in his home, and (2) he openly and publicly acknowledged paternity. (In re A.A. (2004)114 Cal.App.4th 771, 782 (A.A.).) In reviewing the juvenile court’s order, we apply the substantial evidence test. (Ibid.) We “view the evidence in the light most favorable to [the juvenile court’s] determinations. We draw all reasonable inferences, and resolve conflicts in the evidence, in favor of the [juvenile] court’s findings, and we do not reweigh the evidence. [Citation.]” (Ibid.)

Here, the evidence amply supports the juvenile court’s order. We focus only on the declarations provided by S.A. and mother since S.A. is the appealing party.

In his declaration, S.A. did not claim that he had acknowledged paternity of K.A openly and publicly. Instead, he relied on the “judgment of paternity” assertedly entered in the support action. The order was entered after S.A. failed to file a response to the petition. There was no testing to prove paternity, nor was there any explanation as to why the DCSS filed the action against S.A. and not E.K. In other words, the judgment was not the result of a contested action and a considered evaluation of each side’s supporting evidence by the family court (since none was required). It would be a mistake to award presumed father status based on DCSS’s decision and S.A.’s failure to act in the support action.

Also, S.A. did not provide any support for K.A. until his government benefit checks were garnished as a result of the support judgment. It also is unclear from the record how much support was paid to support K.A. S.A. alleged he paid significant support, but the record indicates that only a small portion of the support S.A. paid was allocated to support K.A. because there apparently was another order requiring S.A. to pay child support for his other children (presumably unpaid back child support).

There was no evidence that S.A. executed the voluntary declaration of paternity as claimed by S.A. The assertion was contested in the juvenile court, and there is nothing in the record to support it.

Finally, there was little evidence that S.A. received K.A. into his home. His visits for the first two years of K.A.’s life were described as sporadic. One year after his government benefit checks were garnished, he sought visitation with K.A. through a family court action, but, again, his visits were sporadic and none occurred in his home, with one exception. That exception occurred when S.A. gained custody of K.A. for approximately three weeks when mother failed to appear at a contested hearing. Her failure to appear, according to mother, was because S.A. did not serve her with notice of the hearing, despite his having filed a proof of service stating mother was served personally.

In addition, a review of the record indicates the juvenile court may have determined that S.A. did not have any credibility. Each of S.A.’s allegations about mother proved to be groundless. There was no credible evidence that K.A. had been molested, no evidence mother was a prostitute, and no evidence mother abused drugs. A mental health evaluation had been completed for S.A., which concluded he had bipolar disorder and a personality disorder. Further evaluation was recommended. There also was evidence of S.A.’s bizarre behavior during and after his visitation with K.A. S.A. denied any mental health problems, was not truthful with the evaluation, and claimed that mother had “rigged” the DNA tests.

We recognize that S.A. provided a tape recording to police officers in which K.A. stated that E.K. had touched her “down there.” K.A.’s answers, however, were provided in a coercive environment, and only after excessive and suggestive questioning by S.A. The juvenile court likely gave no weight to this evidence.

The juvenile court also had before it the court’s file from the custody action. A review of this file established that each time S.A. received a ruling that did not please him, he would return to court and say anything he thought would assist him in gaining custody of K.A., with no regard for the truth.

In light of this undisputed evidence, it is unlikely that S.A.’s declaration was given much weight by the juvenile court.

S.A. argues that In re Nicholas H. (2002) 28 Cal.4th 56 (Nicholas H.) supports his case. We disagree because Nicholas H. is both factually and legally distinct. That case involved a man who was not the minor’s biological father, but who qualified as a presumptive father pursuant to section 7611(d). The legal issue presented was whether the presumption arising under section 7611(d) was necessarily rebutted pursuant to section 7612, subdivision (c) (hereafter section 7612(c)) simply because the man was not the biological father. (Nicholas H., at p. 58.) In other words, the question was whether section 7612(c) prevented a nonbiological father from becoming a presumptive father, regardless of his relationship to the minor. The Supreme Court held that section 7612(c) did not automatically preclude a nonbiological father from being a presumed father. (Nicholas H., at pp. 63-64.)

Section 7612 states: “(a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. [¶] (b) If two or more presumptions arise under Section 7610 or 7611 that conflict with each other, or if a presumption under Section 7611 conflicts with a claim pursuant to Section 7610, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. [¶] (c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.”

S.A.’s position is legally distinct because the issue is whether he qualified under section 7611(d) as a presumed father, not whether that presumption could be rebutted by the provisions of section 7612. Moreover, Nicholas H. actually harms S.A.’s position. In its conclusion, the Supreme Court concluded that section 7612(c), which states that the “presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man, ” would apply when “another candidate is vying for parental rights and seeks to rebut a section 7611(d) presumption in order to perfect his claim.” (Nicholas H., supra, 28 Cal.4th at p. 70.)

In this case, the default judgment requiring S.A. to pay child support has been vacated, so there is no judgment establishing paternity in favor of S.A. Moreover, the record established that E.K. was K.A.’s biological father. If a judgment making that determination has been entered, then S.A.’s claim of presumed fatherhood status would be rebutted by section 7612(c).

Nicholas H. also is factually distinguishable from the instant case. The presumed father in Nicholas H. lived with the mother when the minor was born, and for several years after that, and acted as the minor’s father. He was named the father on the minor’s birth certificate and provided a home for the minor and the mother while they lived together. When the father separated from the mother, she prevented the father from seeing the minor. The mother, however, proved unable to care for and protect the minor.

The Supreme Court noted that the father was a constant in the minor’s life. He lived with the minor for several years, provided significant financial support over the years, consistently referred to the minor as his child, and treated the minor as his child. The undisputed evidence also established that the father and child had a strong emotional bond. (Nicholas H., supra, 28 Cal.4th at p. 61.)

We have summarized S.A.’s involvement in K.A.’s life above. Detailed analysis is not necessary to conclude that S.A.’s sporadic involvement in K.A.’s life compares unfavorably with the father’s involvement with the minor in Nicholas H. The juvenile court reached the same conclusion when it concluded that S.A. did not qualify as a presumed father under Nicholas H.

The juvenile court was presented with little credible evidence that S.A. met the requirements of section 7611(d), and what evidence was presented was contested. The juvenile court acted well within its discretion in determining that S.A. was not K.A.’s presumed father, and this decision was supported by substantial evidence.

DISPOSITION

The order of the juvenile court finding that S.A. is not K.A.’s presumed father is affirmed.

WE CONCUR: WISEMAN, Acting P.J., LEVY, J.


Summaries of

In re K.A.

California Court of Appeals, Fifth District
Feb 9, 2011
No. F060276 (Cal. Ct. App. Feb. 9, 2011)
Case details for

In re K.A.

Case Details

Full title:In re K.A., a Person Coming Under the Juvenile Court Law. TULARE COUNTY…

Court:California Court of Appeals, Fifth District

Date published: Feb 9, 2011

Citations

No. F060276 (Cal. Ct. App. Feb. 9, 2011)