Opinion
A113231
12-12-2006
In re LAUREN K., et al., Persons Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. TIMOTHY R., Defendant and Appellant.
Timothy R. (appellant) appeals the juvenile courts orders denying his request for presumed father status, pursuant to Family Code section 7611, as to Lauren K. (now four years old) and J.R. (now one year old). Appellant contends (1) he established that he was the presumed father as to both children, and that presumption was not rebutted by any other party; (2) in Laurens case, the juvenile court erred as a matter of law in failing to weigh the competing presumptions before determining whether appellant or the other alleged father should be declared Laurens presumed father; and (3) in J.R.s case, the courts determination that the other alleged father is a presumed father is not supported by substantial evidence and is incorrect as a matter of law. We shall affirm the juvenile courts orders.
All further statutory references are to the Family Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On February 7, 2006, the Humboldt County Department of Health and Human Services (Department) filed petitions alleging that Lauren and J.R. came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (g). Specifically, the petitions alleged that, on February 5, 2006, sheriffs deputies investigating a report from an anonymous party learned from the childrens mother, Michelle W. (mother), that she had been smoking methamphetamine in the childrens presence; she was arrested for endangering the health of her children and possession of paraphernalia. The petitions further alleged that a voluntary family maintenance case had been opened for mother in September 2005; at the time the petition was filed, her substance abuse, mental health, and housing issues had not been successfully resolved. In addition, mother had previously had a child removed from her care and her parental rights terminated.
The petitions further alleged that appellant, who had acted as a father to the children for the previous three months, had been arrested on February 1, 2006 for domestic violence after causing significant property damage to his trailer, in which mother and the children were living. Appellant locked himself in the trailer with the children and told mother he was going to keep them and raise them as his own. Appellant had previously been arrested for domestic violence against mother in December 2005, and mother had obtained a temporary restraining order (TRO) against him.
The petitions named appellant as an alleged father of both Lauren and J.R.; it also named K.K. as an alleged father of Lauren and Wade S. as an alleged father of J.R.
The petitions also contained an allegation, under subdivision (g) of Welfare and Institutions Code section 300, of failure to support with respect to K.K. for Lauren, and Wade S. for J.R.
In the detention report, prepared on February 7, 2006, the social worker reported that mother had been engaged in a voluntary family maintenance case plan with the Department since July 2005. She and Lauren had lived with appellant in his trailer from September to December 2005, and J.R. had lived with appellant from his birth, in October 2005, to December 2005. Mother and appellants relationship became troubled and mother obtained a TRO against him in December 2005. On February 1, 2006, appellant destroyed much of the trailer, rendering it unsafe and unhealthy. Mother was therefore told to leave the premises; she did so, but returned to the trailer thereafter.
On February 5, 2006, a social worker viewed the trailer, which was the type that would be on the back of a pickup truck, and noted that the toilet was full of paper and the small shower was stuffed with items, which made it look like it had not been used in a long time. There were dishes, garbage, toys, blankets, and other objects all over the trailer, such that one could not take a step without stepping on something. Lauren had lice, there were live bugs on her, and she was very dirty. J.R.s clothes were dirty, but he seemed clean.
The report further stated that on about January 31, 2006, Wade S. had been determined by genetic testing to be 99.9 percent certain to be J.R.s biological father. On about April 28, 2004, a family support order was signed establishing K.K. as Laurens father. Paternity was established by a voluntary paternity declaration, with both parents signing documents indicating that K.K. was the father.
On February 8, 2006, the juvenile court ordered both children detained, and further ordered the alleged fathers to file statements regarding paternity (form JV 505). On February 9, 2006, each alleged father filed a statement regarding paternity requesting the court enter a judgment of paternity in his favor.
Appellant filed a declaration in support of his statement regarding paternity, in which he stated that mother moved into his home in April 2005, when she was five months pregnant with J.R. At appellants urging, mother attended several prenatal appointments; appellant was present at J.R.s birth and cut the umbilical cord. J.R. was given appellants last name. Lauren moved in with appellant and mother in September 2005, and soon began to call appellant "daddy." Appellant further stated, "[s]ince April 2005, I have rescheduled my whole life to provide care for these two children. I have quit looking for work (as I provide care every day) . . . ." In response to the restraining order, he moved out of his own trailer in order to provide mother and the children with a home. He has spent time there since, babysitting for the children.
K.K. filed a declaration in support of his statement regarding paternity, in which he stated that he is Laurens father and that he and mother signed a "POPS" form—a voluntary declaration of paternity—shortly after Laurens birth confirming that he is her father. He lived with mother before Laurens birth, attended several prenatal appointments, and was present at Laurens birth in April 2002. Thereafter, he lived with mother and Lauren and cared for Lauren in all respects until October 2002, when he was arrested after he and mother had an argument. A restraining order was issued against him and he went to jail for approximately six months.
After his arrest, K.K. spent two years in the Crossroads program, and had been clean and sober for three years. In August 2004, at mothers request, K.K.s stepmother became Laurens guardian. K.K. visited with Lauren while he was at Crossroads and, upon his graduation in September 2004, began living with and caring for her on a full time basis until June 2005, when mother came and took her back.
Wade S. also filed a declaration in support of his statement regarding paternity, in which he stated that he is the father of J.R. He heard in November 2005 that mother had given birth to his son. On December 5, 2005, Wade S. submitted to genetic testing, the results of which showed that he is J.R.s biological father. On February 4, 2006, two days after he learned he was J.R.s father, Wade S. received a telephone call from mother and invited her to bring J.R. to his home; she never arrived. He stated, "Had I had the opportunity to see and nurture my child prior to his detention on February 5, 2006 I would have done so."
Wade S. had been employed as a truck driver since 1987, and had lived in his current home since before 1998. He stated, "I am able to provide a comfortable home, responsible care, and financial support for my son [J.R.]. I offer my resources, financial and emotional, for his support."
The Department filed an opposition to any order seeking to designate appellant the presumed father of Lauren and J.R. Mother filed a declaration stating that appellant should be declared the presumed father of both children. He had consistently acted as a father figure to the children and mother intended to pursue a relationship with appellant and to seek housing with him when the court permitted it.
At the March 3, 2006 hearing regarding presumed father status, the juvenile court took judicial notice of appellants domestic violence conviction. At the conclusion of the hearing, the court found, in Laurens case, that, while the law provides in unique situations for presumed fathers who are not biological fathers, in this case, "the presumption is there and exists that therefore the Court is finding that Mr. K[.] is the presumed father. And Mr. R[.] [appellant] is not going to have that status. I dont think that it is in the childs best interest to have two presumed fathers. [¶] . . . [¶] That does not mean that Mr. R[.] is excluded from Laurens life to the extent that he has a relationship with the mother, to the extent that she chooses to have that relationship. Hes going to have to probably comply with things on a voluntary basis to—to remain involved. But the person who should have presumed status as it relates to Lauren is Mr. K[.]"
As to J.R., the court found, "its actually a little bit more problematic. Its interesting that folks say what Mr. S[.] was supposed to do yet. [J.R.] is four months old, and Mr. S[.] asked for genetic testing which is certainly reasonable under the circumstances and is here stepping forward indicating that he wants to have a role—a stronger role in the childs life. Again, Mr. R[.] knows hes not the biological father. And so I am in that case as well granting presumed fatherhood to Mr. S[.] And, again, Mr. R[.]s relationship would be tangential or connected through his relationship with the mother.
"It is, I think, a mistake for courts to grant presumed [father status] to more than one person unless it [is] an extremely unique situation where it is clear that the second presumed father is someone who is just so beneficial to the childs relationship that that—and that the other father who stands there is not—that that somehow works out. But that burden has not been met here in light of what else has been presented."
Finally, the court denied appellants alternative request for Kelsey father status, explaining, "I think that that is not appropriate in these circumstances, and especially in light of [appellants criminal conviction for domestic violence]. And, again, I think that that—I think it is commendable that he would take a role in the childrens lives, but that is really typical of what good stepparents do to raise status on a legal basis. I think [that] is not what is meant by presumed father status in [Welfare and Institutions Code section] 300 proceedings."
Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).
The jurisdictional hearing took place immediately after the hearing on presumed father status. The juvenile court sustained the allegations in the petition, as amended. The court granted K.K. and Wade S. supervised visitation.
Appellant filed a notice of appeal on March 10, 2006.
DISCUSSION
"In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers. . . . [¶] Presumed father status ranks highest. Only a `statutorily presumed father is entitled to reunification services under Welfare and Institutions Code section 361.5, subdivision (a) and custody of his child under Welfare and Institutions Code section 361.2." (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.)
A man can qualify for presumed father status pursuant to one of the provisions of section 7611, under which "[a] man is presumed to be the natural father of a child if," inter alia, he and the mother execute a voluntary declaration of paternity (§§ 7611, 7573); he marries the childs mother (§ 7611, subd. (a)); attempts to marry the childs mother (§ 7611, subds. (b), (c)); or "receives the child into his home and openly holds out the child as his natural child." (§ 7611, subd. (d).)"
Section 7611 provides in relevant part: "A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:
"(a) He and the childs natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.
"(b) Before the childs birth, he and the childs natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid . . . . [¶] . . . [¶]
"(c) After the childs birth, he and the childs natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid . . . . [¶] . . . [¶]
"(d) He receives the child into his home and openly holds out the child as his natural child."
"Although more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, `there can only be one presumed father. [Citations.] How those competing presumptions are to be reconciled is set forth in section 7612 . . . ." (In re Jesusa V. (2004) 32 Cal.4th 588, 603.) Section 7612 provides in relevant part: "(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 7611 which conflict with each other, 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."
An alleged father has the burden of establishing, by a preponderance of the evidence, the facts supporting his entitlement to presumed father status. (In re T.R. (2005) 132 Cal.App.4th 1202, 1210.) We review for substantial evidence a juvenile courts determination as to whether an alleged father has qualified as a presumed father. (In re A.A. (2003) 114 Cal.App.4th 771, 782; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650.) We review the juvenile courts determination whether such a presumption has been rebutted for an abuse of discretion. (In re Nicholas H. (2002) 28 Cal.4th 56, 59, 63.)
The Department argues, as a preliminary matter, that appellant failed to meet his burden to establish presumed father status because his violent behavior was repugnant to parenting. The Department and the childrens counsel also argue that K.K. is conclusively presumed to be Laurens presumed father under section 7612, subdivision (c), due to his execution of a voluntary declaration of paternity. Appellant counters that he cannot be disqualified from presumed father status based on his violent actions when those actions were not the basis of the dependency proceedings and, in addition, that a voluntary declaration of paternity is not equivalent to a judgment of paternity for purposes of sections 7611 and 7612.
We need not resolve these questions because, even indulging appellants arguments, we conclude substantial evidence supports the juvenile courts findings that K.K. and Wade S. also qualified as presumed fathers and acted within its discretion when it found that the presumption with respect to appellant was rebutted.
Appellant asserts that the juvenile court failed to weigh the competing presumptions regarding which alleged father should be considered the presumed father of Lauren and J.R. We disagree. While it would have been useful for the court to more explicitly explain its reasoning, the record nonetheless clearly reflects that the court weighed the competing considerations and exercised its discretion when it found that K.K. and Wade S. were the presumed fathers in this matter.
I. Presumed Father of Lauren
K.K. indisputably satisfied his burden of showing that he qualified as Laurens presumed father, pursuant to section 7611, subdivision (a), having executed a voluntary declaration of paternity shortly after Laurens birth. In his declaration, he stated that he lived with mother before Laurens birth, attended prenatal appointments with her, and was present at Laurens birth in April 2002. He and mother both signed a voluntary declaration of paternity and he lived with mother and Lauren, caring for Lauren in all respects, until October 2002, when he was arrested following an argument with mother. A restraining order was issued against him and he was incarcerated for about six months. He then spent two years in a drug treatment program and had been clean and sober ever since. At mothers request, K.K.s stepmother was Laurens guardian between August 2004 and June 2005. During that time, Lauren visited K.K. at his treatment program and, upon his graduation in September 2004, he lived with and cared for Lauren full-time until mother took her back.
In his declaration, appellant stated that mother moved into his trailer in April 2005 when she was five months pregnant with J.R. Lauren moved in with them in September 2005 and soon began calling him "daddy." Appellant did not look for work because he provided care for the children every day. In response to a restraining order, he moved out of his trailer, but returned to babysit for the children. Thus, appellant arguably met his burden of showing that he satisfied section 7611, subdivision (d), by receiving Lauren into his home and openly holding her out as his natural child.
It is undisputed, however, that in December 2005, appellant was charged with domestic violence involving mother that resulted in issuance of a TRO and a criminal conviction against appellant. On February 1, 2006, appellant was arrested following another violent incident in which he "destroyed much of the trailer." Appellant apparently then locked himself in the trailer with the children and told mother he was going to keep them and raise them as his own.
The juvenile courts ruling that K.K., and not appellant, is Laurens presumed father is supported by substantial evidence. Lauren, who is not appellants biological child, lived with appellant for, at most, four months, a very limited amount of time. (See In re A.A., supra, 114 Cal.App.4th at p. 786.) Additionally, and most importantly, appellants repeated violent behavior, which included tearing apart the trailer in which Lauren was living, necessarily was detrimental to Lauren. (See, e.g., § 3020, subd. (a) ["domestic violence in a household where a child resides is detrimental to the child"]; accord, In re Jesusa V., supra, 32 Cal.4th at p. 610; In re Heather A. (1996) 52 Cal.App.4th 183, 194.) In weighing all of these facts, the juvenile court acted well within its discretion when it concluded that the presumption favoring K.K. was founded on "weightier considerations of policy and logic," and hence "controls." (§ 7612, subd. (b).)
II. Presumed Father of J.R.
Appellant argues that, because Wade S. never received J.R. into his home or held him out as his son, he cannot be J.R.s presumed father pursuant to section 7611, subdivision (d). Although appellant is correct that Wade S. did not qualify as a presumed father under section 7611, the court in effect found he was a presumed father under Kelsey S., supra, 1 Cal.4th 816.
An unwed biological father who does not meet the requirements of section 7611 can still be a presumed father. When he cannot "[receive] the child into his home and openly [hold] out the child as his natural child" (§ 7611, subd. (d)) due to actions of the mother or the Department, the unwed father may nonetheless obtain presumed father status if, upon learning of the existence of the child, he "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial and otherwise . . . ." (Kelsey S., supra, 1 Cal.4th at p. 849; accord, In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117; see also In re Jerry P., supra, 95 Cal.App.4th at p. 807, fns. omitted ["No matter how loving, caring, giving and nurturing he is, control over a mans presumed father status ultimately rests with the mother, or in some cases a third party," as when the Department has taken custody of the child].)
Here, Wade S. stated in his declaration that he heard in November 2005 that mother had given birth to his son. On December 5, 2005, he submitted to genetic testing and, on February 2, 2006, he received the results confirming that he is J.R.s biological father. Mother called him on February 4, 2006, and he invited her to bring J.R. to his home. The children were removed from mothers custody on February 5, 2006. The petition, filed on February 7, 2006, stated that Wade S. had told the social worker that "he does want [J.R.] placed with him." On February 8, 2006, he appeared at the detention hearing, seeking presumed father status as to J.R.
In his declaration, appellant stated that mother told him she had previously informed Wade S. that he might be J.R.s father and that she saw him drive through the trailer park without stopping to visit J.R. However, in her declaration, mother did not make any such claims. The juvenile court reasonably believed Wade S.s statements of what occurred, rather than this uncorroborated, second-hand evidence from appellant. (See In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372 [it is for trier of fact to determine credibility of witnesses and truth or falsity of facts upon which a determination depends].)
Wade S. thereafter filed a statement regarding paternity, and also a declaration in support of that statement, in which he stated, "Had I had the opportunity to see and nurture my child prior to his detention on February 5, 2006, I would have done so. [¶] I am able to provide a comfortable home, responsible care, and financial support for my son [J.R.] I offer my resources, financial and emotional, for his support." He also stated that he had been employed as a truck driver since 1987, and had lived in his current home since before 1998.
The evidence thus shows that Wade S. promptly came forward upon learning of J.R.s existence and expressed a commitment to his parental responsibilities. (See Kelsey S., supra, 1 Cal.4th at p. 849; In re Baby Boy V., supra, 140 Cal.App.4th at p. 1117.) In In re Baby Boy V., the appellate court found that the childs father was entitled to presumed father status under Kelsey S. and, absent the presentation of evidence of unfitness on remand, to reunification services and visitation. In the present case, we grant the childrens counsels request for judicial notice of several documents, including an addendum report for the dispositional hearing, filed on April 26, 2006, which reflects that J.R. was placed on an extended visit with Wade S. on March 20, 2006; the courts dispositional findings and orders, filed May 4, 2006, in which it removed J.R. from mothers custody and placed him in the home of Wade S. on a family maintenance plan; and a decree changing name of minor, filed on July 18, 2006, in which the court granted Wade S.s petition to change J.s name from "[J.R.]" to "[J.S.]" (See Evid. Code, §§ 452, subd. (d), 459; In re Marina S. (2005) 132 Cal.App.4th 158, 166.) These documents establish that Wade S. has already demonstrated his parental fitness to the satisfaction of both the Department and the juvenile court. Accordingly, substantial evidence supports the juvenile courts implied finding that Wade S. is a Kelsey S. presumed father.
We observe that the juvenile court found it reasonable for Wade S. to request genetic testing before stepping forward as J.R.s father.
With respect to appellant, the juvenile court acted well within its discretion in finding any presumption of fatherhood rebutted, pursuant to section 7612, subdivision (a). As we discussed in part I, ante, of this opinion, the very limited amount of time he lived with J.R.—at most three months—and the repeated incidents of violence that necessarily affected the children, amply support the juvenile courts findings. (See In re A.A., supra, 114 Cal.App.4th at p. 786; § 3020, subd. (a).)
DISPOSITION
The orders appealed from are affirmed.
We concur:
LAMBDEN, J.
RICHMAN, J.