Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Jacqueline Lewis, Referee (pursuant to Cal. Const., art. VI, § 21). Los Angeles County Super. Ct. No. CK64760.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Roni Keller for Respondent L.S.
INTRODUCTION
J.G. (father)—the biological father of L.S.—was unaware of L.S.’s existence for the first 11 months of her life because L.S.’s mother, J.A. (mother), purposely concealed from him both her pregnancy and L.S.’s birth out of wedlock. By the time father discovered that L.S. might be his child, she had been under the jurisdiction of the juvenile court and residing for almost a year with a foster family that was seeking to adopt her.
In connection with the Welfare and Institutions Code section 366.26 selection and implementation hearing, father filed a section 388 petition seeking an order that he was the presumed father of L.S. and entitled to reunification services. The juvenile court denied father’s section 388 petition, terminated his parental rights, and freed L.S. for adoption by her foster parents.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, father contends that he should have been treated as a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). Therefore, according to father, the juvenile court erred in denying his section 388 petition and in terminating his parental rights without making a finding of detriment or unfitness.
Following our recent opinion in In re Vincent M. (2008) 161 Cal.App.4th 943 (Vincent M.), we affirm the orders of the juvenile court denying father’s section 388 petition and terminating his parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
L.S. came to the attention of the Department of Children and Family Services (DCFS) when she tested positive for cocaine at birth. On August 23, 2006, DCFS filed a petition under section 300, subdivisions (a) and (b).
The childrens’ social worker (CSW) assigned to L.S.’s case reported that after mother gave birth to L.S., both mother and L.S. tested positive for cocaine. Mother admitted to the CSW that she had used drugs for approximately one month prior to giving birth to L.S. Mother also informed the CSW that she had received no prenatal care during her pregnancy with L.S.
Mother told the CSW that she had two other children, by two different men, who live with their maternal grandmother in Honduras.
Mother told the CSW that she lived with a friend in Maywood, but was unwilling to provide the friend’s name. When the CSW drove to the residence address provided by mother, she was unable to make contact with the occupants of the home.
Mother told the CSW that she had only lived at the Maywood address for a month and that, prior to that time, she lived in Tampico, Mexico. She identified L.S.’s father only as “Flaco,” and claimed that he was currently living in Mexico. According to mother, she left “Flaco” in Mexico and came to the United States because he was “very abusive towards her and physically assaulted her on numerous occasions.”
Flaco means thin or skinny in Spanish.
Mother informed the CSW that she was debating whether to allow DCFS to place L.S. with an adoptive family for long-term care. She stated that she would try to attend the August 23, 2006, detention hearing and the CSW provided her with the address of and directions to the hearing location.
The CSW concluded that mother’s drug use would impair her ability to provide care for and supervision of L.S., thus placing L.S. in “immediate harm and danger.” Accordingly, the CSW placed L.S. in protective custody.
At the August 23, 2006, detention hearing, which mother did not attend, the juvenile court found that DCFS had made a prima facie showing that L.S. was a child described in section 300, subdivisions (a) and (b). Temporary placement and custody of L.S. was vested in DCFS. The juvenile court granted mother monitored visits and ordered drug testing and reunification services for her, including referrals for a domestic violence program and individual counseling to address codependence, drug use, and parenting. The juvenile court ordered a due diligence concerning attempts to notify the alleged doe father, “Flaco,” of the proceeding and that there would be no visitation by the alleged doe father until he was located and assessed.
On September 29, 2006, a CSW reported that she was unable to interview mother in preparation for the jurisdiction/disposition hearing because mother’s current whereabouts were unknown. She made a similar report about “Flaco,” the alleged doe father. The CSW also confirmed that DCFS had not had any contact with mother since she was interviewed at the hospital shortly after L.S.’s birth. DCFS reported that L.S. was currently placed in the foster home of M.D.
A due diligence report was attached to the CSW’s jurisdictional/disposition report detailing DCFS’s efforts to locate the parents.
At the October 4, 2006, jurisdiction/dispositional hearing, the juvenile court found that notice had been sent to the Mexican Consulate and that the whereabouts of mother and the alleged doe father, “Flaco,” were unknown. The juvenile court then found the allegations of the petition to be true, including the allegation in paragraph B-3 that alleged doe father, “Flaco,” “repeatedly physically assaulted [L.S.’s] mother.” The juvenile court sustained the petition and found L.S. to be a person described in section 300, subdivisions (a) and (b). The juvenile court further found that reasonable efforts had been made to locate the parents, removed custody of L.S. from them, and placed her in the custody of DCFS for suitable placement. Finally, the juvenile court ordered DCFS to begin planning efforts for adoption and permanent placement.
On April 4, 2007, a CSW reported that L.S. was developmentally delayed and had been referred to regional center. The CSW also reported that L.S. had been living with foster parents since she was released from the hospital on August 22, 2006, that the foster parents had expressed a desire to adopt L.S., and that they were providing a stable and nurturing environment for her. The foster parents, Mr. and Mrs. D., had five biological children and three foster children, including L.S. The CSW observed that the family had formed a strong bond with L.S. According to the CSW, mother was still whereabouts unknown and therefore she recommended that the foster parents be allowed to pursue adoption planning services for L.S.
On May 11, 2007, a CSW reported that a home study of the prospective adoptive parents’ home had been conducted and that the prospective adoptive parents had been committed to completing the home study and were eager to adopt L.S. The CSW also reported that L.S.’s birth certificate did not list a father, that “due diligence” for alleged doe father, “Flaco,” had been submitted and was pending, and that “due diligence” for mother had been re-submitted and was pending. The CSW reported that L.S. had been assessed by regional center and evaluated as developmentally delayed.
At the May 11, 2007, progress hearing, the juvenile court found that the name “Flaco” for the alleged doe father was an “A.K.A.,” that any publication or further attempts to serve the alleged doe father would be fruitless, and that no further efforts to notify him would be made. The juvenile court also ordered DCFS to perform a new due diligence on mother and publication.
In July, 2007—less than a year after L.S. was born—mother delivered L.S.’s half-sister. As was the case with L.S., both mother and L.S.’s half-sister tested positive for cocaine. On July 26, 2007, DCFS filed a petition under section 300, subdivision (b) relating to L.S.’s half-sister. At the detention hearing on the petition relating to L.S.’s half-sister, mother appeared for the first time in the proceeding, as did father. Father informed the juvenile court that he believed he was L.S.’s biological father. The juvenile court then asked father to step outside the courtroom while it completed L.S.’s half-sister’s detention hearing and informed father that counsel would be appointed for him, after which L.S.’s case would be called.
When the juvenile court subsequently called L.S.’s case, the court confirmed that counsel had been appointed for father and was present in court. Father was sworn, identified himself, and provided his address and telephone number. The juvenile court reviewed a paternity form filled out by father and a paternity questionnaire filled out by mother. When the juvenile court asked mother if father was L.S.’s biological father, mother answered in the affirmative. The juvenile court then asked mother who “Flaco” was. At first, mother indicated that father was “Flaco,” but after further questioning by the juvenile court, mother admitted that she was not referring to father when she gave the name “Flaco” to the CSW who interviewed her at the hospital.
Father confirmed for the juvenile court that he never lived with L.S. and never provided any form of support for her. But, according to father, the reason he did not live with or support L.S. was because he “never knew anything about this child [L.S.].” He informed the juvenile court that the first time he heard anything about L.S.’s existence was approximately five days earlier. He heard about it from mother’s “aunt-in-law.”
Based on the testimony of mother and father, the juvenile court found that father was the alleged father of L.S., ordered a paternity test, and ordered father and mother to appear on September 20, 2007, for a section 366.26 hearing on the best permanent plan for L.S.
On September 20, 2007, a CSW reported that DCFS was recommending adoption as the permanent plan for L.S. The CSW also reported that the adoption home study was completed and approved. According to the CSW, neither parent had called to arrange visits with L.S., but both mother and father had met with the CSW and been informed that DCFS would continue its previous recommendation to the juvenile court concerning termination of parental rights and adoption as the permanent plan for L.S. The CSW observed that father was “tearful and upset” at the prospect of losing his parental rights to L.S., and the CSW heard father state, “I did not know [mother] was pregnant with my baby.” The CSW further reported that father’s paternity test showed that the probability that he was L.S.’s biological father was 99.99%.
At the September 20, 2007, section 366.26 hearing, mother and father appeared represented by counsel. Father’s counsel requested a continuance to research father’s rights to reunification services. Over the objection of L.S.’s counsel, the juvenile court set October 9, 2007, as the date by which father must file any motions he wanted to make and October 30, 2007, as the date of the continued section 366.26 hearing.
On October 9, 2007, father filed a section 388 petition seeking an order finding him the presumed father of L.S. and granting him reunification services, citing Kelsey S., supra, 1 Cal.4th 816 and In re Baby Boy V. (2006) 140 Cal.App.4th 1108. At the October 9, 2007, hearing, the juvenile court reviewed father’s petition and set it for hearing on October 30, 2007, the same day as the continued section 366.26 hearing.
On October 30, 2007, a CSW reported that father told her the following: “I want to have custody of my child. I did not know that I was the father. I know that [L.S.] is in the process of adoption, but I should be given a chance. I could provide for all her needs. If I knew that I had a daughter, I would have claimed her since the start. [Mother] never informed me about my daughter and I did not see [mother] pregnant.” The CSW further reported that when she met with mother and father on August 15, 2007, mother admitted that “she deliberately concealed [L.S.’s] birth from [father].” The CSW visited the home of the paternal grandfather and the paternal step-grandmother and found it “organized, clean, and clutter free.” The paternal step-grandmother informed the CSW that she would provide childcare for L.S., and both she and the paternal grandfather expressed their support of father in his efforts to gain custody of L.S. The CSW recommended that father be found to qualify as a “quasi-presumed father” and provided reunification services. The CSW also recommended concurrent permanent planning services during the reunification period.
The October 30, 2007, hearing was continued to November 6, 2007, at which time L.S.’s counsel requested a continuance to allow her to complete an investigation into father’s background. The juvenile court granted the motion, set the section 388 petition and the section 366.26 hearing for November 30, 2007, and granted father monitored visitation rights.
At the request of L.S.’s counsel on November 30, 2007, the juvenile court continued the hearing to January 14, 2008.
On January 14, 2008, the juvenile court conducted a hearing on father’s section 388 petition and on L.S.’s permanent plan under section 366.26. Father was called as a witness by his counsel and testified as follows: Father first met mother in a restaurant in the City of Highland Park approximately two years prior. She lived in the City of Maywood. He dated her for about two or three months. They were “boyfriend and girlfriend” and had a sexual relationship. He had sex with her about eight times and did not use birth control, except for the first time. At some point in the relationship, mother disappeared. Father tried to locate her by going to the place she was renting, but could not find her. He tried to contact members of her family, but was unsuccessful. Father did not become aware that he may have fathered a child with mother until two days prior to his first appearance in the juvenile court on July 26, 2007. Mother’s sister and aunt contacted L.S.’s paternal grandfather who passed the information about L.S. to father. Mother’s sister told father about the court date on July 26.
Earlier father had said he did not learn that he may have fathered a child with mother until five days prior to the July 26, 2007, hearing.
After his first court appearance, father began to visit L.S. He visits with her every eight days for an hour in the presence of a CSW. When he visits L.S. he hugs her and plays with her, but he only has a short time with her. Father is happy when he is with L.S. and would like to spend more time with her. When father visits L.S., her brings her things like clothes and toys. Father wants to support L.S., but has not contributed any money towards her support because he was told that he was not required to do so at this time. If L.S. were returned to him, father would be able to provide emotional and financial support for her. L.S. is his only child. Father is employed with a construction company and works every day. If L.S. is returned to him, he plans to move in with his father and stepmother whose home has been evaluated by DCFS.
Father currently shares a home with his uncle, a cousin, and a friend. Father was arrested twice for soliciting prostitution, convicted once of that offense, and also convicted of hit and run driving. Father has never been known by the name “Flaco” and he never had any physical altercations with mother. He is from El Salvador, never lived in Mexico, and has resided in the United States for 10 years.
Father’s counsel next called mother’s sister as a witness, and she testified as follows: Mother’s sister met father once when mother introduced him to her sister as mother’s boyfriend. After L.S.’s half-sister was born, mother told her sister that father may be L.S.’s biological father. Mother’s sister then consulted her aunt. Mother’s sister looked in mother’s phone book and found a telephone number for the paternal grandfather. Mother’s sister and her aunt went to the paternal grandfather’s house. She was the person who informed father that he had a child by mother. She told him he was probably L.S.’s father and that he should have a DNA test.
Following mother’s sister’s testimony, father’s counsel called mother’s aunt as a witness and she testified as follows: Mother’s aunt is her aunt by marriage. At the time of L.S.’s birth, mother was “into drugs.” Mother’s aunt tried to help her, but mother would not cooperate with anyone. After L.S.’s half-sister was born, Mother’s aunt spoke to mother and asked for the identity of the father of the two children. Mother told her aunt that she was not sure if L.S.’s father was a policeman mother had dated or father. About a week after L.S.’s half-sister was born, mother’s aunt went to look for father at the paternal grandfather’s home. She spoke to the paternal grandfather and step-grandmother and told them about L.S. Mother never called father “Flaco.”
L.S.’s counsel called L.S.’s foster mother, M.D. as a witness and she testified as follows: L.S. has lived with her foster family since she was born. At the time of the hearing, L.S. was a year and a half old. L.S. has been diagnosed as “slow in development and somewhat regressed.” She receives therapy twice a week. M.D. goes with L.S. to each therapy session and provides additional therapy as well. If L.S.’s foster family were allowed to adopt L.S., the family would allow father to continue visiting L.S.. Father has told M.D. that he knows L.S. loves her and that M.D. is her mother. Father also told M.D. that he was concerned about L.S. moving in with the paternal grandfather and step-grandmother because he has not had a good relationship with them. M.D. believes father loves L.S., but “the truth is that L.S. loves her foster father very much and she copies everything he does. She likes to wear his hat, she gives him his cane so he’ll go out and walk with her and then she’ll cry if he doesn’t do it.” Other than two recent missed visits, father visited L.S. regularly over the prior four months. The visits are always appropriate. Father plays with L.S. and he brings her clothes and toys.
After hearing the foregoing testimony, the juvenile court made its ruling. The juvenile court first observed: “[The Court]: This case is different. I have agonized over this case for the last several days and, frankly, for the last several months. I would add I didn’t get any sleep last night. There are no ‘bad guys’ in this scenario except perhaps for the mother. No, it comes down to weighing the rights of the biological father with the rights of the child. I want to be very clear about that weighing process for the benefit of the appellate court.”
The juvenile court then found that “we didn’t know about [father] because the mother lied. That is true. However, we also didn’t know about him because he was not married to the mother; he was not listed on [L.S.’s] birth certificate because he was not at the hospital when she was born, he never lived with her and he never visited with her for almost the first year of her life. [Father] is not a bad guy. The testimony about the arrests for prostitution, frankly, were not particularly relevant to me. I know that this court sustained allegations against ‘Flaco,’ the person mother claimed to be the father. I know that this court removed custody ‘from Flaco’ at disposition. I know that the mother here in court indicated that [father] was Flaco although ‘he’s not so Flaco anymore.’ Mother’s credibility is certainly in question. Whether [father] is Flaco or not, mother’s allegation of domestic violence are certainly called into question based on the fact that we know she lied about knowing who [L.S.’s] father was. We know she lied about knowing how to reach him. We know she lied about having lived with [L.S.’s] father. Therefore, most of her statements are questionable. [Father] is a nice guy with a job who loves his little girl and wants to provide for her. [Father] did what many young men do every day. He had a sexual relationship with a young woman. He didn’t know her very well. He didn’t know her family. He didn’t know her friends. He knew little about her. He didn’t know that she was a drug user. He didn’t know that she would take off and he would never see her again. He did not marry her. He did not live with her and he also did not use contraception protection to make sure that she could not have a baby. This is not a moral indictment. It is just a statement of the facts and it was a risk. The risk was not only all the things that we tell our young men about the risks of having unprotected sex with someone you don’t know very well. The risk is that you could create a baby. In this case, that risk came to fruition.”
The juvenile court then found that removal of [L.S.] from her foster home would not be in her best interest. “Again, if we were at a detention hearing or even a disposition hearing and [father] stepped forward and asked for custody of his child or reunification, I would probably grant that request. DCFS would be unable to show that it would be detrimental to place [L.S.] with her father. At the very least this court would have offered reunification services for [father]. In addition, it probably would have been in L.S.’s best interest. However, [L.S.’s] best interest has changed over time. In determining [L.S.’s] best interest, this court must weigh in the fact that [L.S.] really has no idea that [father] is her father. She has no idea that she has a family other than [Mr. and Mrs. D, her foster parents]. They are the persons who have had her since birth. They are the people who have fed her in the middle of the night. They are the ones who have walked the floor with her when her tummy was upset. They have taken her to the doctor for her immunizations. They have been the faces she sees when she wakes up. They are her family. [L.S.] is also with her half-sister. She is in a home that has loved her and taken care of her since day one and wants to continue to do that for the rest of her life. Should she be removed from the only home that she has ever known at this point? In this case is that in her best interest? I cannot find that it is.”
The juvenile court also determined that father was not a presumed father entitled to reunification services. “Is [father] a presumed father? Again, I can’t find that he is. Pursuant to Family Code section 7540, he was not married to the child’s mother. Pursuant to Family Code section 7611(A-C), he never tried to marry the mother. Pursuant to Family Code section 7611(D), he has now openly held the child out to be his child after the results of the [paternity test] were received, but he has never really openly accepted the child in his home. Did the mother preclude him from doing this? Yes, [she] did. Has he stepped forward since he learned he was the biological father and done what he could for this child? Yes, he has. He has visited. He has brought over things for L.S. to try and support her. He is willing to move in with his father and provide a home for her. However, the fact that he didn’t know he was the father of a baby girl is also based on the fact that he made the decision to have unprotected sex with someone. There are many, many cases out there regarding paternity. Some have been cited today. Those cases range from indicating that biological paternity is everything to biological paternity is nothing. I do not believe that the facts in this case warrant presumed father status under the code. However, even if I am wrong regarding whether his actions have earned him presumed father status at this time, the prongs of the 388 petition remain. If [father] had done at disposition what he has done now in accepting responsibility for L.S., the case of Adoption of Kelsey S., 1 Cal.4th 816, even though it is a family law case and not a juvenile law case, would probably entitle him to reunification services at disposition. However, again, we are not at disposition, but at a 388 hearing, and it is not in [L.S.’s] best interest to allow family reunification services to [father] after she has been in the [foster parents’] home for 17 months.”
The juvenile court therefore concluded that, “When this court looks at the best interest standard and weighs [L.S.’s] rights with [father’s] right to raise his biological child, I find that [L.S.’s] rights trump. She is the only true innocent here. No matter what I decide, someone’s heart will be broken, [father] or [Mr. and Mrs. D.,] but it is in [L.S.’s] best interest that it is not her heart I break. [¶] I believe that [father’s] motives are pure and that he loves his daughter but the reality is he is merely the sperm donor in this child’s life. She only knows one family and it is in her best interest to remain with that family.”
The juvenile court entered orders denying father’s section 388 petition and terminating his parental rights. Father filed a timely appeal from those orders.
DISCUSSION
A. Standards of Review
Ordinarily, a challenge to the juvenile court’s denial of a section 388 petition is reviewed on appeal for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416 [“The petition [under section 388] is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion”].) To the extent father’s challenge to the ruling denying him presumed father status and reunification services turns on the resolution of a constitutional question, however, we review that ruling de novo. (Starving Students, Inc. v. Department of Industrial Relations (2005) 125 Cal.App.4th 1357, 1363 [“Our review of the ruling on the constitutional question is . . . de novo”].) Likewise, his challenge to the order terminating his parental rights to L.S., which directly raises a constitutional issue concerning his rights to equal protection and due process, is also reviewed de novo. (Ibid.).
B. Under Vincent M., the Juvenile Court Did Not Abuse Its Discretion When It Failed to Treat Father as a Presumed Father
Father contends that under Adoption of Kelsey S., supra, 1 Cal.4th 816, he should have been treated as a presumed father for purposes of determining his entitlement to reunification services. According to father, mother purposely concealed L.S.’s existence from him and, when he ultimately did learn about L.S., he immediately appeared in court and attempted to assert his parental rights to her.
The majority opinion in In re Vincent M., supra, 161 Cal.App.4th 943 held that Kelsey S., supra, 1 Cal.4th 816 did not apply in the context of a dependency proceeding once the reunification period had expired. Under Vincent M., supra, 161 Cal.App.4th 943, father is not a presumed father because he does not fall within the definition of a presumed father under Family Code section 7611. Thus, under that decision, as the reunification period has ended, father is required to show under section 388 that there are changed circumstances or new evidence demonstrating that the child’s best interests would be served by reunification services. Based on the facts set forth above, the juvenile court did not abuse its discretion by finding that it was not in the child’s best interest to have such reunification services with father when L.S. has been raised by the prospective adoptive parents, almost since birth. Similarly, under Vincent M., the juvenile court did not err in finding that L.S.’s best interests would be served by adoption or in terminating father’s parental rights. Although some of us may have different views, we opt to follow a case decided by this division a few months ago, Vincent M., supra, 161 Cal.App.4th 943.
DISPOSITION
The orders of the juvenile court are affirmed.
MOSK, J. (Conc. Opn.)
I concur: ARMSTRONG, J.
MOSK, J., Concurring
I concur.
I have written the majority opinion because in this instance I do not choose to depart from an authority my division decided just a few months ago, even though the composition of the panel in the two cases is different. Had this case been decided first, however, I would have decided it differently, as I discuss.
No Forfeiture
Father did not, as the child, L.S., argues, forfeit his challenge based on Adoption of Kelsey S. (1992)1 Cal.4th 816 (Kelsey S.). Father, in his petition, states: “Father is requesting the court grant him presumed father status and grant him family reunification services. . . . Pursuant to Adoption of Kelsey S., 1 Cal.4th 816, and In re Baby Boy V., 140 Cal.App.4th 1108, [f]ather is entitled to presumed father status, reunification services and visitation.” He added: “Absent a showing of unfitness as a parent, the child’s well-being is presumptively best served by continuation of father’s parental relationship.” In addition, during oral argument, the juvenile court expressly referenced the Kelsey S., supra, 1 Cal.4th 816 and Baby Boy V., supra, 140 Cal.App.4th 1108 decisions, but concluded that they did not apply at the current stage of L.S.’s dependency proceeding.
Denial of the Section 388 Petition
“The Legislature has recognized that a parent who has a child removed for neglect, abuse or substantial risk thereof, in most cases should be provided with services to assist the parent in overcoming the problems that led to removal. (§ 361.5.)” In re Marilyn H. (1993) 5 Cal.4th 295, 308.) “The word ‘parent’ is defined in the Uniform Parentage Act (UPA), Civil Code [former] section 7000 et seq. In particular, the UPA ‘distinguishes between a “presumed father” and one who is merely a “natural father”’ [citation], ‘according presumed fathers greater rights than natural fathers.’ [Citations.]” (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449 (Zacharia D.).) But, “[t]he dependency statutes do not expressly incorporate the definitions of ‘parent’ from the UPA. Such an incorporation, however, can be fairly implied by the use of the terms ‘presumed,’ ‘natural,’ and ‘alleged’ father in sections 366.23 and 366.26. Applying the UPA definition to the dependency context, we conclude that only a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5. [Citation.]” (Zacharia D., supra, 6 Cal.4th at p. 451.)
Civil Code former section 7000, et seq., has been recodified in Family Code section 7600, et seq., without substantive changes. (Cal. Law Revision Com. com., 29G West’s Ann. Fam. Code (2004) § 7600, p. 219.)
Family Code 7611 provides several alternative definitions of a presumed father. The only one that arguably applies to father is subdivision (d). “A man is presumed to be the natural father of a child if he meets the conditions provided in . . . any of the following subdivisions: [¶] . . . [¶] (d) He receives the child into his home and openly holds out the child as his natural child.” (Fam. Code § 7611, subdivision (d).) Under this subdivision, father was required to show that he physically received L.S. into his home. Father concedes that he was unable to make that showing, but argues that he was prevented from doing so by mother’s purposeful concealment of L.S. from him for nearly a year. Therefore, according to father, he qualified as a so-called Kelsey S. father under Kelsey S., supra, 1 Cal.4th 816, and should have been treated as a presumed father for purposes of determining his rights to reunification services in the dependency proceeding.
Formerly Civil Code section 7004, subdivision (a).
In Kelsey S., supra, 1 Cal.4th 816, the mother conceived out of wedlock a child by the father. (Id. at p. 821.) The father was aware of the pregnancy and of mother’s intent to put the child up for adoption. (Ibid.) The father objected to the proposed adoption because he wanted to raise the child. (Ibid.) Two days after the child was born, the father filed an action in the trial court seeking to establish his parental relationship to the child and to obtain custody. (Id. at p. 822.) A few days later, the prospective adoptive parents filed an adoption petition in the trial court. (Ibid.) They alleged that only mother’s consent to adoption was required because there was no presumed father under Civil Code former section 7004, subdivision (a). In the father’s action, the trial court awarded mother custody of the child and prohibited visitation by either the father or the prospective adoptive parents.
As noted above, Civil Code former section 7004, subdivision (a) has been recodified as Family Code section 7611 without substantive changes.
The prospective adoptive parents then petitioned the trial court for an order terminating father’s parental rights. (Kelsey S., supra, 1 Cal.4th at p. 822.) The parties stipulated that father was the natural father, but the trial court found that he was not a presumed father under Civil Code former section 7004. (Id. at p. 823.) After a hearing on the merits, the trial court found that the best interests of the child would be served by terminating the father’s parental rights. (Ibid.)
On appeal, father argued, inter alia, that the trial court erred in not granting him presumed father status. (Kelsey S., supra, 1 Cal.4th at p. 823.) The Court of Appeal affirmed the judgment of the trial court. (Ibid.) The Supreme Court granted review, stating the issue as follows: “The primary question in this case is whether the father of a child born out of wedlock may properly be denied the right to withhold his consent to his child’s adoption by third parties despite his diligent and legal attempts to obtain custody of his child and to rear it himself, and absent any showing of the father’s unfitness as a parent.” (Id. at p. 821.)
According to the Supreme Court in Kelsey S., supra, 1 Cal.4th 816, the termination of the father’s parental rights under the circumstances of that case violated father’s federal constitutional guarantees to equal protection and due process. (Id. at p. 821.) “In summary, we hold that [Family Code former] section 7004, subdivision (a) and the related statutory scheme violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child’s biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child’s best interest. If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child’s well-being is presumptively best served by continuation of the father’s parental relationship.” (Kelsey, S., supra, 1 Cal.4th at p. 849.)
The court in Kelsey S., supra, 1 Cal.4th 816 delineated the factors a court should consider in determining whether a father has demonstrated “a full commitment to his parental responsibilities.” (Id. at p. 849.) “A court should consider all factors relevant to that determination. The father’s conduct both before and after the child’s birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate ‘a willingness himself to assume full custody of the child—not merely to block adoption by others.’ [Footnote and citation omitted.] A court should also consider the father’s public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.” (Kelsey S., supra, 1 Cal.4th at p. 849.)
Although decided in the context of a private adoption proceeding, the constitutional rationale of Kelsey S., supra, 1 Cal.App.4th 816 is equally applicable in the context of this dependency proceeding. For purposes of constitutional considerations, I see no meaningful distinction between the two proceedings under the facts of this case. Here, it was undisputed that father did not know of L.S.’s existence for almost a year after she was born. Mother admitted to a CSW that she had purposely concealed her pregnancy and L.S.’s birth from father. Moreover, the juvenile court found that mother lied to the CSW who interviewed her by telling the CSW that L.S.’s father was named “Flaco” and lived in Mexico, knowing father’s name was not “Flaco” and knowing that he was originally from San Salvador and currently lived in Highland Park. Mother further misled the CSW by telling her that up until a month before L.S.’s birth, mother had lived with father in Mexico, when in fact father had never lived in Mexico, and mother had come to the United States from her country of origin, Honduras. By completely misleading DCFS about father’s identity and whereabouts, mother effectively prevented DCFS and the juvenile court from locating father and involving him in L.S.’s dependency proceeding at an earlier stage, during which he presumably would have been provided reunification services, as the juvenile court observed. Therefore, when father ultimately came forward and timely asserted his parental rights to L.S., he was entitled to be treated as a presumed father under Kelsey, S., supra, 1 Cal.4th 816.
The failure to treat father as a presumed father under Family Code section 7611, subdivision (d), for purposes of determining his right to reunification services, allows mother, in effect, to unilaterally preclude father from reunifying with L.S., and deprives father of his fundamental civil right to companionship, care, custody, and management of L.S. (See In re P.A. (2007) 155 Cal.App.4th 1197, 1210-1211 [“‘Parents have a fundamental interest in the care, companionship, and custody of their children’”].) That is precisely the type of improper treatment that the court in Kelsey S., supra, 1 Cal.4th 816 held violated a biological father’s equal protection and due process rights. Thus, by denying father presumed father status and reunification services, the juvenile court arbitrarily deprived father of the opportunity to reunify with L.S.
My conclusion in this regard is not unprecedented. For example, the court in In re Baby Boy V. (2006) 140 Cal.App.4th 1108 also held that denying a biological father presumed father status under circumstances similar to this case violated the father’s constitutional rights under Kelsey S., supra, 1 Cal.4th 816. “On the record before us, it is undisputed that [the father], a nonoffending, stable, employed, and financially responsible adult, came forward at the earliest possible moment and when the baby had been in foster care for only eight months. It is undisputed that the only reason [the father] did not come forward at an earlier date is that he did not know of the existence of the baby. It is undisputed that the mother would not disclose his identity to the court or to the Department, and that he was thereby prevented from receiving the baby into his home and holding himself out as the baby’s father. (Fam. Code, § 7611, subd. (d).) For these reasons, [the father] is entitled to presumed father status. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 [4 Cal.Rptr.2d 615, 823 P.2d 1216] [‘a mother [may not] unilaterally . . . preclude her child’s biological father from becoming a presumed father[,] thereby allowing the state to terminate his parental rights on nothing more than a showing of the child’s best interest’].) [¶] When an unwed father learns of a pregnancy and ‘promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child’s well-being is presumptively best served by continuation of the father’s parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.’ (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849; In re Julia U. (1998) 64 Cal.App.4th 532, 544 [74 Cal.Rptr.2d 920]; In re Jerry P. (2002) 95 Cal.App.4th 793, 807 [116 Cal.Rptr.2d 123].)” Baby Boy V., supra, 140 Cal.App.4th at p. 1117.)
In the instant case, the juvenile court found true the allegations of domestic violence against mother by “Flaco,” but once father made his first court appearance, no such finding was made as to him. To the contrary, the juvenile court found that father was “a nice guy with a job who loves his little girl and wants to provide for her” and that “there are no ‘bad guys’ in this scenario except perhaps for mother.” As to mother, the juvenile court questioned mother’s credibility generally and specifically expressed doubts about her allegations of domestic violence; and father expressly denied ever being in a physical altercation with mother. Two days after father learned of L.S.’s existence, he appeared in court and pursued the procedural avenues available to him to establish his parental relationship with L.S. The record also showed that father had stable employment, paid taxes, had an approved home, had daycare for L.S., and was otherwise ready and willing to provide emotional and financial support for her. As the juvenile court found, from the time father learned he was L.S.’s biological father, he had stepped forward and done what he could for the child. Thus, as in In re Baby Boy V., supra, 140 Cal.App.4th 1108, he was entitled to be treated as a presumed father for purposes of pursuing reunification services. It appears that neither the juvenile court nor DCFS shared the negative view of father and father’s parental relationship that is set forth in the other concurring opinion.
The majority opinion in In re Vincent M. (2008) 161 Cal.App.4th 943 (Vincent M.) held that Kelsey S., supra, 1 Cal.4th 816 did not apply in the context of a dependency proceeding once the reunification period had expired, disagreeing with the opinion in In re Baby Boy V., supra, 140 Cal.App.4th 1108. Vincent M.’s conclusion is premised, in part, on the fact that the father in that case lived with the mother for two years, during which time they had unprotected sex. (Vincent M., supra, 161 Cal.App.4th at p. 950.) In April 2004, the mother became pregnant, but she terminated that pregnancy in May 2004. (Ibid.) Despite the first pregnancy, they continued to have unprotected intercourse “almost every day.” (Ibid.) The mother became pregnant again, but did not tell the father. (Id. at p. 951.) The father, however, “lived with [the mother] during the pregnancy until six weeks before birth, watched [the mother] get heavier with knowledge she was on a leave of absence from work and observed five or six months after he moved out that [the mother] had lost weight.” (Id. at p. 960.) Based on these facts, the majority in Vincent M. stated that “we find untenable the dependency court’s conclusion that the record was insufficient to determine whether or not [the father] knew or should have known he was the father without mother telling him.” (Ibid.)
The mother’s boyfriend testified that she had gained 40 to 50 pounds by January 2006, a month before Vincent was born. (Vincent M., supra, 161 Cal.App.4th at p. 951.)
Unlike Vincent M., supra, 161 Cal.App.4th 943, here, although mother and father were dating for approximately two months and had unprotected intercourse approximately seven times, they did not live together. Instead, they saw each other only on weekends because they lived in different cities. Moreover, unlike the father in Vincent M., father did not have daily contact with mother for the majority of her pregnancy. To the contrary, mother disappeared without warning two months after her relationship with father began. And father searched for her and attempted to contact her relatives, but to no avail. In contrast to the father in Vincent M., there are no facts in this record to suggest that father knew or should have known mother was pregnant with L.S. Thus, the facts in this case showing that father meets the Kelsey S. criteria for presumed father status are different from, and more compelling than, those at issue in Vincent M. Nevertheless, the distinction is not sufficient to avoid the application of Vincent M. in this case.
I do not read the Supreme Court’s decision in Zacharia D., supra, 6 Cal.4th 435 as precluding the application of Kelsey S. supra, 1 Cal.4th 816 to the facts of this case. In Zacharia D., the juvenile court made specific findings that the father there was unfit, findings that the Zacharia D. court adopted on appeal. The court said, “The juvenile court concluded that [the child’s] return to [the father] would create a substantial risk of detriment to [the child’s] physical and emotional well-being because [the father] had no relationship with the child, had a long-standing drug problem, and planned to marry [the mother], a woman whose care of [the child] had already been adjudicated detrimental to his well-being. The court also questioned whether [the father] had demonstrated sufficient motivation to act as a father. In addition, we note that at this time [the father] was incarcerated for drug use, and required at least six months of services before he would attain the parental competence to be able to visit, let alone have custody of [the child]. [The father] had done almost nothing to develop a relationship with [the child], and had only vague plans of how he would care for him. Indeed, [the father’s] articulated impetus for coming forward was not one based on [the child’s] needs and interests, but rather on [the mother’s] impending loss of parental rights. [¶] The juvenile court’s finding of substantial risk of detriment under section 366.22, subdivision (a), which was supported by substantial evidence, indicates that it would have likewise found under section 388 that it was not in [the child’s] best interests to grant [the father] reunification services or custody.” (Zacharia D., supra, 6 Cal.4th at pp. 455-456.)
Based on the juvenile court’s express finding of detriment, a finding that was supported by substantial evidence, the biological father in Zacharia D., supra, 6 Cal.4th 435 had no constitutional rights to presumed father status under Kelsey, S., supra, 1 Cal.4th 816. Therefore, the court’s holding in Zacharia D. that the biological father in that case was not entitled to presumed father status, reunification services, or custody is consistent with Kelsey S. and my position. The application of the child’s best interest standard under section 388 was appropriate in that case because the juvenile court made express findings of detriment, findings that precluded any constitutional claim under Kelsey S.
Here, by contrast, the juvenile court made no finding of detriment or unfitness as to father, and it implicitly suggested that there was no detriment when it indicated that it would have granted father reunification services if his motion had been made at the detention or disposition hearings. And cannot and should not make such a determination on appeal. Thus, as a nonoffending, biological father who had been prevented from attaining presumed father status by the machinations of mother, father was entitled to be treated as a presumed father under Kelsey S., supra, 1 Cal.4th 816 for purposes of adjudicating his right to reunification services.
“California’s dependency scheme no longer uses the term ‘parental unfitness,’ but instead requires the juvenile court make a finding that awarding custody of a dependent child to a parent would be detrimental to the child. (In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3 [33 Cal.Rptr.3d 337].)” (In re P.A., supra, 155 Cal.App.4th at p. 1211.)
As a presumed father under Kelsey S., supra, 1 Ca.4th 816, father should have been accorded a presumption that L.S.’s well-being was best served by a continued relationship with him, thereby satisfying the child’s best interest prong of section 388. Had there not been the precedent of this division, I would have determined that the father’s 388 petition should be granted, unless it is affirmatively demonstrated that his unfitness as a father would make such a continued parental relationship detrimental to L.S.’s well-being.
Termination of Parental Rights Under Section 366.26
The termination of parental rights without making the required finding of parental unfitness or detriment violates father’s constitutional rights. “Parents have a fundamental interest in the care, companionship and custody of their children. For this reason, they have certain due process protections in juvenile dependency proceedings. (Santosky v. Kramer (1982) 455 U.S. 745, 758 [71 L.Ed.2d 599, 102 S.Ct. 1388] (Santosky).) Before the state may sever a parent’s rights in his natural child, due process mandates the state’s allegations be supported by evidence that is, at a minimum, clear and convincing. (Id. at pp. 747–748.) Once the state has shown a parent unfit, the juvenile court may then assume the child’s interests have diverged from those of his or her natural parent. (Id. at p. 760.) However, ‘until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.’ (Ibid.)” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1210-1211; see also In re P.A., supra, 155 Cal.App.4th at p. 1210-1211.)
“‘California’s dependency system comports with Santosky’s requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit.’ (Gladys L., supra, 141 Cal.App.4th at p. 848, citing Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254 [19 Cal.Rptr.2d 698, 851 P.2d 1307] (Cynthia D.).) ‘Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard (see § 361, subd. (b)); in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached.’ (Cynthia D., supra, 5 Cal.4th at p. 253.) ‘“The number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child.” [Citation.] The linchpin to the constitutionality of the section 366.26 hearing is that prior determinations ensure “the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which the state must align itself.” [Citation.]’ (Gladys L., supra, 141 Cal.App.4th at p. 848.)” (In re G.S.R., supra, 159 Cal.App.4th at p. 1211.)
Because I have concluded in connection with father’s challenge to the denial of his section 388 petition that he was a Kelsey S. father, he was entitled to a presumption that L.S.’s well-being would be best served by the continuation of father’s parental relationship. (Kelsey S., supra, 1 Cal.4th at p. 849.) Thus, under Kelsey S. and the dependency cases cited above, that presumption in father’s favor should have prevailed, absent an affirmative showing of unfitness or detriment.
The evidence showed, and the juvenile court found, that father was the nonoffending, biological father of L.S. No finding of unfitness or detriment was made, nor could it have been based on the facts in the appellate record. The juvenile court, in effect, acknowledged that it did not consider mother’s allegations about “Flaco’s” domestic violence credible, and mother herself ultimately admitted that father was not “Flaco.” Moreover, father denied ever engaging in any physical altercation with mother, testimony that the juvenile court implicitly accepted when it found father to be a “nice guy,” not a “bad guy.” And, although there was evidence that father had twice been arrested for soliciting prostitution, and convicted once of that crime and of hit and run driving, the juvenile court found that evidence not to be “particularly relevant.” Again, it is not for us at this stage to question that determination by the juvenile court.
Absent a finding of unfitness or detriment, the juvenile court had no power to terminate father’s parental rights to L.S. Father’s evidence constituted a prima facie showing that it is presumptively in L.S.’s best interests to continue in a parental relationship with father, and there was no evidence presented concerning father’s unfitness as a parent.
As with my analysis of father’s challenge to the denial of his section 388 petition, I do not read Zacharia D., supra, 6Cal.4th 435 as controlling on the issue of termination of parental rights or otherwise in conflict with my view of that issue. Indeed, the court in Zacharia D. made it clear that its decision was limited to the juvenile court’s ruling on reunification and custody under section 388 and that it was not reaching, much less deciding, the potential constitutional issue that may arise in dependency proceedings concerning a biological father’s rights under Kelsey S., supra, 1 Cal.4th 843 in the context of permanent plan proceedings.
Specifically, the court in Zacharia D., supra, 6 Cal.4th 435 observed: “Here, we examine only a biological father’s right to reunification services and custody, not the standard under which his parental rights are terminated. As in the adoption context addressed in Kelsey S., however, a biological father’s paternal rights may ultimately be terminated in the dependency process. Such termination is almost inevitable if a father is not involved in the dependency process prior to the section 366.26 hearing. The issue would arise therefore, under facts not presented here, whether the statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S. Extending Kelsey S. to apply in the dependency context would allow such a father to participate as a ‘parent’ in, or end the need for, the dependency proceedings. However, under no view of the evidence did [the father] demonstrate such a commitment, or satisfy any of the Kelsey S. criteria during the relevant period in this case. Nor does [the father] claim he was precluded from attaining presumed father status by [the mother] or any third party. Thus, we need not address this constitutional issue here.” (Zacharia D., supra, 6 Cal.4th at pp. 450-451, italics added.)
Because the court in Zacharia D., supra, 6 Cal.4th 435 acknowledged that it was not deciding the constitutional issue raised in this case, its decision on the father’s entitlement to reunification services and custody does not require affirming the juvenile court’s order terminating parental rights in this case. A nonoffending, biological father who appears in a dependency proceeding after the reunification period has expired may nevertheless seek to establish his rights under Kelsey S., supra, 1 Cal.4th816, by showing that the child’s existence was concealed from him by the actions of the mother and demonstrating a full commitment to his parental responsibilities under the criteria set forth in Kelsey S. If the biological father makes such a showing, he is entitled to a presumption that the continuation of his parental relationship with the child will best serve the well-being of the child. The father in this case made such a showing, and absent a finding of unfitness or detriment, it was presumptively in L.S.’s best interests to continue her parental relationship with father.
Conclusion
I understand the dilemma that the juvenile court so clearly identified. The child’s interests are likely to be well served by proceeding with an adoption by a loving family that she has known as her parents her whole life. What occurred was no fault of the prospective adoptive parents. However, as pointed out by the dissent in Vincent M., supra, 161 Cal.App.4th at page 969 (Armstrong, J., dissenting), “‘[a father] also has the fundamental right to parent his child. (In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal.Rptr. 623, 579 P.2d 514.) The right to parenting should only be disturbed in extreme cases of persons acting in an incompatible fashion with parenthood. (Ibid.) The relationship of a natural parent and a child is a vital human relationship which has far-reaching implications for the growth and development of the child. (Ibid.) The involuntary termination of that relationship by state action must be viewed as a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment. (Ibid.)’ (In re Julia U., supra, 64 Cal.App.4th at p. 544.)”
I am also mindful of L.S.’s apparent close bond to the prospective adoptive parents and family, the only parents and family she has known in her first two years of life. I would endeavor to strike a balance between father’s constitutional rights as a parent under Kelsey, S., supra, 1 Cal.4th 816 and L.S.’s interest in preserving the bond with her prospective adoptive family. If I were deciding this matter without our precedent, I would leave it to the juvenile court to exercise carefully its discretion in evaluating father’s fitness as L.S.’s parent, and, if it were determined that father is entitled to reunification services, to monitor closely the progress of the reunification process, periodically reevaluating father’s continued fitness and relationship with L.S.
There should be a definitive resolution of the conflicting views on the significant social and constitutional issues presented in this case.
Turner, P. J., Concurring Opinion.
This case involves a special needs child. I concur in the decision to affirm the orders: denying J.G.’s motion to accord him presumed father status; denying J.G.’s Welfare and Institutions Code section 388 modification petition; and terminating parental rights. I write separately but with great respect to explain why the juvenile court has acted appropriately.
First, J.G. is not a presumed father. When the child was born, J.G. states he was unaware of her birth. Thus, when the child was born, J.G. never received her into his home and held her out as his own. (Fam. Code, § 7611, subd. (d); see In re J.L. (2008) 159 Cal.App.4th 1010, 1023 [“Christopher was an unwed biological father who had never taken J.L. into his home, and therefore was not entitled to presumed father status under section 7611, but he could have claimed effective presumed father status by asserting Kelsey S. rights.]”.) He is not a presumed father.
Second, nor can J.G. be deemed to be what is commonly referred to as a “Kelsey S. father” based on due process and equal protection grounds. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582-583; Adoption of Danielle G. (2001) 87 Cal.App.4th 1392, 1404.) Our colleague, Associate Justice Richard D. Huffman synthesized the elements of a biological father’s entitlement to presumed father status in a dependency appeal based on the decision of Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849: “A biological father may be accorded parental rights and become a Kelsey S. father when his attempt to achieve presumed parent status under section 7611, subdivision (d) is thwarted by a third party and he made ‘a full commitment to his parental responsibilities-emotional, financial, and otherwise.’ (Kelsey S., supra, 1 Cal.4th at p. 849; In re Sarah C. (1992) 8 Cal.App.4th 964, 972.) We consider his conduct before and after the child’s birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses commensurate with his ability to do so, and promptly took legal action to obtain custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849.) He must demonstrate a full commitment to his parental responsibilities within a short time after he learned that the biological mother was pregnant with his child. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1060.) He must also demonstrate a willingness to assume full custody. (Kelsey S., supra, 1 Cal.4th at p. 849.)” (In re Elijah V., supra, 127 Cal.App.4th at p. 583.)
As of the date of the parental termination rights order, January 17, 2008, J.G. had no home for the child. Rather, J.G. said he would have to move out of his home where he lives with Rudy Lopez and Will Laso and move into his parents’ residence. J.G.’s parents would care for the child because he worked full time. And this is a home which does not even have a crib for the child nor does J.G. even own one. To further complicate matters from his perspective, the proposed home is one where J.G. has concerns about the quality of care the child will receive. J.G. admits he does not get along with his parents. There is no evidence J.G. has offered to pay the costs of caring for the child. Nor did J.G. offer to pay pregnancy and birth expenses commensurate with his ability to do so. J.G. testified that if he was asked to he would have done so but he never volunteered to pay the birth and pregnancy expenses upon discovering he was the biological father. Although J.G. has given clothes and toys to the child, he has not contributed a single penny to her care. J.G. knows that the child has problems for which she undergoes treatment but he: is unaware of her specific problems; has never observed any of the therapy; and never asked to be present when the child undergoes therapy. When the applicable standard of appellate review is applied, this attenuated relationship is not the equivalent of an unmarried biological father: displaying ‘“a full commitment to his parental responsibilities-emotional, financial, and otherwise”’; paying “pregnancy and birth expenses commensurate with his ability to do so”; “displaying a full commitment to his parental responsibilities” within a short time after learning of his paternity; and demonstrating a willingness to assume “full” custody. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1060; Adoption of Kelsey S., supra, 1 Cal.4th at p. 849; In re Elijah V., supra, 127 Cal.App.4th at p. 583.)
Third, the juvenile court did not abuse its discretion in denying J.G.’s Welfare and Institutions Code section 388 modification petition. Because J.G. failed to achieve presumed father status within the applicable review period, our Supreme Court held his sole remedy is a Welfare and Institutions Code section 388 modification petition: “[I]f a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, whether that period be 6, 12, or 18 months as in this case, he is not entitled to such services under section 361.5. Here, [the alleged father] failed to achieve such status prior to the termination of reunification services. Rather, he waited until the 18-month hearing before even asserting his alleged father status, and his biological paternity was not judicially established until several months later. His only remedy, therefore, was to file a motion to modify under section 388.” (In re Zacharia D. (1993) 6 Cal.4th 435, 453; see In re Vincent M. (2008) 161 Cal.App.4th 943, 955.) We review an order denying a modification petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re M.V. (2006) 146 Cal.App.4th 1048, 1059.)
The juvenile court did not abuse its discretion in ruling the child’s best interest would best be served by denying J.G.’s modification petition. There was evidence: J.G. repeatedly irresponsibly engaged in unprotected sexual conduct and made no plans for a potential pregnancy; this was consistent with J.G.’s repeated contact with prostitutes and those who use them; J.G. had also been convicted of misdemeanor hit and run in violation of Vehicle Code section 20002, subdivision (a); J.G. had no experience raising children; in order to raise the child, J.G.’s parents would have to actually care for her because he worked every day; J.G. had concerns about his parents’ ability to care for the child because he did not get along with them; the proposed home (where J.G. would have to move into) was unsuitable for raising a child—it did not even have a crib; J.G., apart from gifts, has never provided financial support for the child; the child suffered from delays which required twice weekly therapy at Children’s Hospital; and J.G. had never attended a therapy session and was unaware of the extent of the child’s special needs. By contrast, there was evidence: the child had lived with her foster parents since she was born; the foster parents and their children had formed “a strong bond” with the child; the child was in a loving home where her relationship with others “was the best in the world”; the home where the child resided had been identified as a prospective adoptive residence; and the prospective adoptive parents had “demonstrated an excellent ability to care for” the child and meet her needs.
Finally, I see no reason to grant review. The child lives in a loving prospective adoptive home. The delays attendant to a grant of review just to merely affirm the juvenile court’s orders would be deeply hurtful to the child and the prospective adoptive family which includes eight other youngsters. The issue of whether the juvenile court abused its discretion in finding the child’s best interests were best served by denying the Welfare and Institutions Code section 388 modification petition is not even close. One on hand, there is loving prospective adoptive family who is prepared to care for the child and her special needs. On the other hand, J.G.: knows nothing material of the child’s special needs; has repeatedly engaged in unprotected sexual conduct resulting in the child being born of a mother who was a cocaine addict; wants the child to be raised in a home where he has concerns about the quality of care that will be provided to her; and has never assumed the financial and other responsibilities of a father. It is noteworthy the position of the Department of Children and Family Services in the juvenile court that J.G. was a “quasi-presumed father” is a label that finds no support in California law. Of course, if In re Zacharia D., supra, 6 Cal.4th at page 453 is flat out wrong, its error has escaped the attention of our Supreme Court in the past decade and one-half, and a reconsideration of that decision would alter the outcome of this case, then review may be a wise course of action.