Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J234235. Marsha Slough, Judge.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
Edward B. appeals a juvenile court order denying his request to be declared the presumed father of L.B. We will affirm the order.
FACTUAL AND PROCEDURAL HISTORY
Because of the limited nature of the issue which is before us, we provide a less detailed factual and procedural history than is customary in dependency cases. And, because this appeal pertains solely to Edward B.’s contention that he qualifies as a presumed father, we omit any discussion pertaining to the mother or to the other children who are also the subjects of the dependency proceedings.
General Background
A petition pursuant to Welfare and Institutions Code section 300 alleged that L.B., who was 10 years old, was at substantial risk of serious physical harm because his mother, who suffered from bipolar disorder, was unable to provide adequate care and supervision. It alleged that L.B. had suffered serious emotional harm because his mother had accused him, for over a year, of sexually abusing his half sister. There was no evidence that the sister had been molested, and L.B. had been diagnosed with major depression and had stated that he wanted to kill himself. The petition also alleged that Edward B., L.B.’s father, had failed to provide adequate food, clothing, shelter and medical care, and that he had a history of domestic violence and sexual abuse. It further alleged that the father’s whereabouts were unknown, and that he had failed to provide adequate care and support for two of his other children, half siblings of L.B., who were court dependents in another county.
In July 2010, L.B. was placed at the Loma Linda Behavioral Medicine Center pursuant to Welfare and Institutions Code, section 5150. In an interview with the social worker at that facility on August 4, 2010, L.B. denied that he had inappropriately touched his sister. He said he had felt like killing himself for approximately five months. He said he had tried to kill himself in the spring of 2009 by wrapping an extension cord around his neck and pulling it tight. He had previously been hospitalized at the same facility in June 2010 because of his behavior, i.e., breaking things and writing on walls because he was angry that his mother accused him of lying. He told the social worker he did not feel safe with his mother and did not want to return to her. L.B.’s maternal grandmother confirmed that L.B. had threatened to kill himself and had said that he wanted to die because his mother did not love him. The grandmother also confirmed that the mother was verbally and emotionally abusive toward L.B.
Welfare and Institutions Code section 5150 provides, in pertinent part, “When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.”
The social worker interviewed L.B.’s mother, who said she could not have L.B. in her home until he had received counseling. She agreed that placement by Children and Family Services (CFS) would be in L.B.’s best interest.
L.B. was released from Loma Linda on August 6, 2010, and placed in foster care. On August 9, 2010, L.B. pulled a knife out of a kitchen drawer and threatened to kill himself because he had been teased by another foster child. A crisis intervention team was called. L.B. was removed from the foster home shortly thereafter and placed in a group home which specializes in treating boys aged 6 to 12 with significant behavioral problems. He was later placed with a maternal aunt.
After a contested jurisdiction and disposition hearing, the court found the allegations of the petition true as revised and removed L.B. from the custody of his mother. It ordered L.B. maintained in the home of his maternal aunt. It found Edward B. to be an alleged father, not entitled to reunification services, and it did not order reunification services for him.
Edward filed a timely notice of appeal.
History Pertaining to Edward’s Request for Presumed Father Status
L.B. told the social worker that he had not seen Edward for three years. He did not know where his father was living. The social worker eventually learned that Edward was in prison, but before he could be served with the petition, he was paroled. The social worker contacted his parole agent, and Edward eventually received the petition and notice to appear in court on November 9, 2010 for the jurisdiction and disposition hearing.
Edward appeared in court on November 9, 2010. He had submitted a paternity declaration stating that he believed he was L.B.’s biological father and asking to be declared L.B.’s presumed father. At a paternity hearing, he testified that he believed he was L.B.’s father because the child looks just like him. He was in a relationship with L.B.’s mother but no longer living with her when the child was born in May 2000. He was not present at the birth, was not listed on the birth certificate and did not sign a voluntary declaration of paternity. He has never established his paternity through paternity testing.
Edward lived with L.B.’s mother from May 1999 until December 1999, when he was incarcerated. He resumed living with her in August 2000 and left her home in May 2001. L.B. never lived with Edward after Edward left the mother’s home. Over the nine years since he moved out, Edward saw L.B. 20 to 30 times, but had not seen him since 2008. He supported L.B. when they lived together and continued to do so until August 2002, but he never paid child support for L.B. after that. He did buy L.B. some underwear and socks in 2006 when the child was coming over to visit. He also bought him a motorcycle, but L.B. “was too young for it.” When Edward did visit with L.B., L.B. called him “Dad.”
Edward was “convicted” as a juvenile of forcible rape. In 2008, he was convicted of failing to register as a sex offender. He was released from prison in June 2010. A condition of his parole is that he is not to have any contact with children, including his own. He did not have any visits with L.B. while he was in prison and had not visited him since he was released on parole.
Edward testified that his three siblings know that L.B. is his son and that L.B. visits with them. His two daughters, ages 13 and 14, also know that L.B. is Edward’s son. They have visited L.B. about 10 times. Edward’s mother had seen L.B. about seven times.
LEGAL ANALYSIS
1.
THE APPEAL IS NOT FRIVOLOUS
CFS urges us to dismiss the appeal as frivolous. An appeal is frivolous if it is taken for an improper motive or if no reasonable attorney could have thought that the appeal had arguable merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) There is no evidence of any improper motive, and we do not agree that the contentions raised on appeal were so obviously meritless as to be frivolous. Consequently, we will address the issues on their merits.
2.
EDWARD DID NOT MEET HIS BURDEN OF PROOF TO ESTABLISH PRESUMED FATHERHOOD
For purposes of dependency law, only presumed fathers are entitled to reunification services and to custody. A presumed father is a man who, whether or not he is the biological father of the child, falls within one of the categories enumerated in Family Code section 7611. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449, 450, fn. 18.) Family Code section 7611, subdivision (d) (hereafter section 7611(d)), on which Edward relies, provides that a man is presumed to be the natural father of the child if he “receives the child into his home and openly holds out the child as his natural child.”
Edward contends that he is entitled to a finding that he is L.B.’s presumed father because he presented unrebutted evidence which showed that he took the child into his home and held him out as his son. CFS, on the other hand, contends that we must uphold the ruling because the juvenile court’s finding that Edward was an alleged father, rather than a presumed father, is supported by substantial evidence.
Neither party is correct. Edward had the burden of proof as to the foundational facts, i.e., that he took L.B. into his home and openly held him out as his natural child. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.) By finding that he was not a presumed father but an alleged father, the court implicitly found that Edward failed to meet his burden of proof. Our review does not depend upon whether substantial evidence supports that finding. The substantial evidence rule “is typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence, ” i.e., that plaintiff/respondent failed to meet his or her burden of proof. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) In a case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, however, “it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case. [Citations.]” (Id. at p. 1528.) Where the issue on appeal turns on a finding that the appellant failed to meet his or her burden of proof at trial, the question is therefore not whether substantial evidence supports the judgment, but “whether the evidence compels a finding in favor of the appellant as a matter of law.” (Ibid., italics added, citing Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571.) Accordingly, the question in this appeal is whether the evidence was sufficient, as a matter of law, to compel a finding that Edward qualified as a presumed father pursuant to section 7611(d). (In re I.W., supra, at p. 1528.) We conclude that it was not.
Edward contends that the evidence showed that he took L.B. into his home for 16 months. That is not exactly what the record shows. Edward did not testify that he took L.B. into his home. Rather, he testified that he lived with L.B. in the mother’s home between August 2000 and May 2001, a period of 10 months at most. L.B. never lived with him since Edward “left [the mother’s] home.” Although a trier of fact could find that the first prong of section 7611(d) is satisfied if the putative presumed father established a home with the child, regardless of whether it was in a home which was originally the mother’s or in a separate home which was solely the father’s, the evidence that Edward lived with L.B. for 10 months and then left and never took him into his home again certainly does not compel that conclusion. (In re I. W., supra, 180 Cal.App.4th at p. 1528.)
In both In re Sarah C. (1992) 8 Cal.App.4th 964 and In re Spencer W., supra, 48 Cal.App.4th 1647, on which respondent relies, the courts found the father’s brief cohabitation with the child and its mother insufficient to satisfy section 7611(d). However, in both cases, the evidence showed that the fathers lived with the mothers only for their own convenience, did not support the household or contribute to the support of the child, and made no attempts to foster a parental relationship with the child after leaving the mother’s home. (See In re Sarah C., supra, at pp. 972-973; In re Spencer W., supra, at pp. 1653-1654.) Edward, in contrast, did contribute to L.B.’s support while he lived with L.B.’s mother and for a while thereafter, and did continue to see L.B. after he left the mother’s home. Consequently, we do not view either case as authority for holding that Edward’s conduct did not, as a matter of law, satisfy the first prong of section 7611(d). Rather, we hold that it was not sufficient to compel the conclusion that it did satisfy that requirement.
Nor does the fact that Edward told his immediate family that L.B. is his son compel the conclusion that he openly held L.B. out as his natural son. He is not on the child’s birth certificate, he never signed a voluntary declaration of paternity, and he made no effort to establish biological paternity. Thus, while he has privately acknowledged his paternity to his immediate family, he has never publicly acknowledged L.B. as his own child or taken any legal responsibility for him.
In dependency proceedings, “the purpose of section 7611... is to determine whether the alleged father has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathers....” (In re Jerry P. (2002) 95 Cal.App.4th 793, 804, italics omitted.) The essence of presumed fatherhood is the establishment of a substantial parent-child relationship, where the presumed father has fully embraced the responsibilities of parenthood—“emotional, financial, and otherwise” (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849)—and has consistently acted in a parental role toward the child. (In re Sarah C., supra, 8 Cal.4th at pp. 972-973.) The evidence Edward presented demonstrates that he has not embraced his parental responsibilities toward L.B. in any meaningful way. Accordingly, the evidence was not sufficient to compel the conclusion that he qualifies as a presumed father.
DISPOSITION
The judgment is affirmed.
We concur: King J., Miller J.