Opinion
C092452
07-28-2021
In re M.C. et al., Persons Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. STK-JV-DP-2019-0000358
KRAUSE, J.
The San Joaquin County Human Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300 regarding the subject minors. A.C., who is the biological father of the minors, M.C. and N.C., and had lived in the same household as them since their birth, and their mother for 11 years, appeals an order denying him presumed father status in the minors' dependency case. A.C. was arrested after attacking the minors and the mother during a domestic violence incident, and a five-year restraining order was issued against A.C. to protect mother and the minors from him. On appeal, A.C. contends it was error for the juvenile court not to elevate him to presumed father status. He contends his application for presumed father status should have been granted because he met the criteria of Family Code section 7611, subdivision (d), and the presumption of paternity was not rebutted. We disagree and shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
The minors' half sibling, B.H., also was part of the dependency action but is not at issue here because A.C. is not B.H.'s father and raises no arguments in relation to this minor.
FACTUAL AND PROCEDURAL BACKGROUND
On March 26, 2019, the Agency received a report that law enforcement responded to a domestic disturbance at the home of A.C. and mother on March 24, 2019. When deputies arrived, mother was hysterical and reported that this was not the first domestic violence incident between her and A.C., and she stated she never reported the prior incidents. Mother reported that she and A.C. had lived together for 11 years and had two children in common. Mother reported that A.C. attacked her by hitting her multiple times in the face and the stomach with a closed fist. Mother suspected that A.C. was using drugs and was possibly hallucinating. She reported that A.C. dragged M.C. by the feet through the house and out to the driveway. Mother reported that A.C. then began choking the subject minor's half sibling, B.H., who contacted law enforcement when mother intervened and drew A.C.'s attention back to her. A.C. began punching mother again.
The deputies also interviewed B.H., who confirmed mother's report and stated that A.C. also slammed B.H.'s head against the back of A.C.'s vehicle. B.H. disclosed to deputies that A.C. had “a shotgun or a pellet gun” in the parents' bedroom. Deputies observed that M.C. and N.C. stayed close to B.H. for protection and appeared “extremely afraid and did not leave his side.” The deputies reported that a gun, which had been reported stolen, was located under the mattress. Subsequently, A.C. was arrested and mother was granted an emergency protective order which was set to expire on March 29, 2019.
On April 30, 2019, a social worker interviewed N.C., who stated that she witnessed other incidents of domestic violence between A.C. and mother, which was always instigated by A.C. N.C. recounted the events of March 24, 2019, stating that A.C. grabbed her but she was able to get away. She stated that she would not feel safe if A.C. returned to the family's home. She further stated that she sometimes had nightmares about the domestic violence she witnessed. A.C. frequently threatened to take her and M.C. to Mexico, away from mother.
The social worker then interviewed M.C., who became emotional while recounting the events of March 24, 2019. M.C. stated her belief that A.C. “tried to kill all of them.” She stated that A.C. dragged her through the house and then began choking her, which resulted in marks that later faded. She stated that there were a lot of incidents where A.C. “would scream, and hit mom, ” leaving the mother with a bloody nose and, possibly, on one occasion, a broken nose. M.C. stated that she was afraid of A.C. and would not feel safe if A.C. were to return to the home. She also expressed fear and worry that A.C. would escape from jail and return to the home.
On May 15, 2019, the social worker spoke with mother, who advised that A.C. was the biological father of M.C. and N.C., but only appeared on N.C. 's birth certificate and no custody orders were in place. Mother also recounted the events of March 24, 2019. She stated that A.C. was hallucinating and screaming. She stated that A.C. barricaded her in the home along with M.C. and N.C. and threatened to kill them. Mother stated that N.C. was able to escape the home and ran to a neighbor's home, while A.C. hit mother and turned violent towards M.C. and B.H. She told the social worker that A.C. had previously never involved the minors in his violent outbursts.
The record herein includes the birth certificates of M.C. and N.C., and show that A.C. is listed as the father on M.C.'s birth certificate, but N.C. 's birth certificate does not indicate a father.
On June 5, 2019, the social worker interviewed A.C., who stated that on March 24, 2019, he was under the influence of alcohol and Norco, which he took for back pain. The social worker told A.C. that the minors appeared to have been exposed to domestic violence for a substantial period of time, as documented with the Agency and law enforcement. A.C. denied the allegations of abuse and insisted that the events of March 24, 2019, did not occur, despite statements from witnesses. The social worker advised A.C. that the minors appeared traumatized from ongoing acts of domestic violence. A.C. stated that he had not intended to harm his family and wanted to change.
On July 3, 2019, the social worker learned that mother did not want to complete a family law restraining order to include the children. The social worker spoke to the minors again in August 2019. The minors both indicated that A.C. called the house and that they continued to be afraid of him and did not want him to return to the home. At a “Child Family Team” meeting, mother reported that the minors were receiving counseling and she was in a better position to protect the minors, and had a stronger support system. The team decision was to refer the matter to the juvenile court as a nondetained petition to allow the minors to remain with the mother with court oversight. Mother was then connected with “Safety Net Services” and began the process of filing a restraining order to protect herself and the minors. The social worker's report showed mother's statement that she and A.C. had engaged in domestic violence for the past 10 years. The report also contained prior contacts between the Agency, A.C., and mother due to incidents of domestic violence, among other things, from September 2011 to August 2016.
A section 300 petition was filed on September 11, 2019, alleging that the subject minors, M.C. (born in 2010) and N.C. (born in 2011), along with their half sibling, B.H. (born in 2006), came within the provision of section 300, subdivision (a), serious physical harm; section 300, subdivision (b), failure to protect; section 300, subdivision (c), serious emotional damage; and section 300, subdivision (j), abuse of sibling. The Agency did not seek to have the minors detained and a criminal protection order had been put in place on September 9, 2019.
At the September 12, 2019 detention hearing, the court ordered that the minors remain in the home with mother, and to have no contact of any kind with A.C. A.C. was found to be the biological father of M.C. It also ordered A.C. to comply with the existing temporary restraining order (TRO). On September 25, 2019, mother sought a TRO to protect herself and the minors from A.C. At the September 25, 2019 jurisdictional hearing, the Agency explained to the court that the initial TRO was a family law order that only protected mother and that a TRO was issued at detention to include the minors. The Agency also advised the court that A.C. was convicted in his criminal case and a criminal protective order was issued through 2024. The court set a contested jurisdictional hearing and issued a TRO against A.C.
The Agency's October 22, 2019 jurisdiction report also showed that A.C. was found to be the biological father of M.C. and the alleged father of N.C.
On October 7, 2019, the court continued the hearing on the TRO and instructed A.C. not to contact mother or the minors. On November 19, 2019, the court issued a five-year restraining order to protect mother and the minors from A.C. The Agency's December 2, 2019 disposition report recommended bypassing services to A.C. under section 361.5, subdivision (a), because reunification services would not be of benefit to the minors as demonstrated by A.C.'s violent behavior, ongoing substance abuse, and willful disregard for criminal and dependency court orders.
On December 26, 2019, A.C. filed form JV-505, “Statement Regarding Parentage, ” requesting to be elevated from biological (as to M.C.), and alleged (as to N.C. ), to presumed father based on the fact that he lived with the minors and mother throughout the minors' lives, held himself out as the minors' father, and participated in caretaking and activities with them. On March 4, 2020, the Agency filed its opposition to A.C.'s request and, on April 30, 2020, A.C. filed a reply.
The Agency's May 27, 2020 status review report recommended dismissing the dependency and leaving the minors with mother, who complied with all of the court's orders and remained protective of the minors. Due to A.C.'s pending dispositional trial, a dismissal could not occur at that time, so additional family maintenance services were requested for mother.
At the June 3, 2020 dispositional hearing, the court denied A.C.'s request to be elevated to presumed father based on the violent nature of the relationship he had with mother and minors. The court stated that it found In re T.R. (2005) 132 Cal.App.4th 1202 (T.R.) instructive: “Based on the case of [T.R.], the Court is gonna agree with the Agency and deny the request that he be at this time raised to the presumed father status, given the nature of the violent relationship he's had from the outset with the mother and children, as well as the children themselves.”
At the August 4, 2020 contested dispositional hearing, A.C. asked the court to reconsider its paternity order. The Agency opposed the request, but the parties stipulated that A.C. was the biological father of both minors. The court declined to reconsider its paternity order and denied A.C.'s request for reunification services, explaining that the purpose of reunification services was to reunify parents with children. The court stated that the restraining order was set to expire at the end of 2024 and was beyond the time for any services that could be offered. The court noted that even if A.C. were elevated to presumed father, he could be bypassed for services under section 361.5, subdivision (b)(6) for physical abuse, which in this case was severe. The court then adopted the findings and orders attached to the Agency's December 2, 2019 disposition report.
A.C. filed a timely notice of appeal.
DISCUSSION
A.C. argues the juvenile court erred in denying him presumed parent status as to the minors because he met the criteria for that designation under Family Code section 7611, subdivision (d). We disagree.
“There are three types of fathers in juvenile dependency law: presumed, biological, and alleged. [Citation.] A presumed father is a man who meets one or more specified criteria in [Family Code] section 7611. A biological father is a man whose paternity has been established, but who has not shown he is the child's presumed father. An alleged father... is a man who has not established biological paternity or presumed father status. [Citation.]” (In re P.A. (2011) 198 Cal.App.4th 974, 979.) Because presumed status comes with the right “to appointed counsel, custody (if there is no finding of detriment) and reunification services, ” it “ ‘ranks highest' ” amongst the three. (Id. at p. 980.) “A father's status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. [Citation.] ‘Presumed father status ranks the highest.' [Citation.]” (T.R., supra, 132 Cal.App.4th at p. 1209.) “A presumed father is one who meets one or more specified criteria listed in [Family Code] section 7611 [citation]. [Citation.] [Family Code section] 7611 sets forth a number of rebuttable presumptions of paternity, mostly concerned with various forms of marriage or attempted marriage to the child's mother. [Citation.] ‘The statutory purpose of [Family Code section 7611] is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.' [Citation.]” (T.R., at p. 1209.)
At issue here is the presumption set forth in Family Code section 7611, subdivision (d), which provides presumed parent status if “[t]he presumed parent receives the child into [his or her] home and openly holds out the child as [his or her] natural child.” A person requesting presumed parent status under Family Code section 7611, subdivision (d) must have a “fully developed parental relationship” with the child. (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 776, italics omitted.) A presumed parent must demonstrate “ ‘a full commitment to [parental] responsibilities-emotional, financial, and otherwise.' ” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.) “The critical distinction is not the living situation but whether a parent-child relationship has been established. ‘ “[T]he premise behind the category of presumed [parent] is that an individual... has demonstrated a commitment to the child and the child's welfare....”' [Citations.]” (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 384-385, fn. omitted.) “One who claims he [or she] is entitled to presumed [parent] status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement. [Citation.] A presumption arising under [Family Code] 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.' [Citation.]” (T.R., supra, 132 Cal.App.4th at p. 1210.)
On appeal, we review the juvenile court's determination of presumed father status under the substantial evidence standard. (In re J.H. (2011) 198 Cal.App.4th 635, 646.)
In the case before us, the juvenile court denied A.C. presumed father status based at least in part on T.R., supra, 132 Cal.App.4th 1202. In that case, T.R.'s stepfather sought presumed parent status. (Id. at p. 1206.) The stepfather was a registered sex offender and hid his criminal record of prior child molestation from T.R.'s mother. (Id. at pp. 1206-1207.) The Agency filed a dependency petition alleging T.R. was at risk of being sexually abused because her sister and grandmother reported incidents of sexually inappropriate conduct between the stepfather and T.R. (Id. at p. 1207.) The juvenile court denied the stepfather presumed parent status because “his sexual abuse of T.R. was fundamentally inconsistent with the role of a parent.” (Id. at p. 1208.)
On appeal in T.R., the appellate court evaluated the factors weighing in favor and against a presumed parent finding under Family Code section 7611, subdivision (d). (T.R., supra, 132 Cal.App.4th at p. 1211.) For example, the stepfather had “openly acknowledged T.R. as his daughter, provided financial support, and received her in his home, ” all of which supported presumed parent status. (Ibid.) However, the court noted that “these positive factors cannot be viewed in a vacuum.” (Ibid.) The court found true allegations that the stepfather molested T.R. (Ibid.) The court determined that the stepfather's “conduct was antithetical to a parent's role and was a blatant violation of parental responsibilities. It more than counterbalanced the factors favoring [the stepfather's] presumed father status.” (Ibid.) Further, even if the “juvenile court should have applied the [Family Code] section 7611, subdivision (d) presumption of presumed father status, the error was harmless because the presumption was more than amply rebutted” by evidence that the stepfather acted inappropriately with T.R. and had been convicted of sexually molesting other children. (T.R., at p. 1212.) “The T.R. court, however, expressly declined to ‘establish a bright-line test' that would automatically disqualify a person from presumed parent status if he or she had ‘committed sexual or serious physical abuse on a child leading to the institution of the dependency proceeding.' [Citation.]” (In re Alexander P. (2016) 4 Cal.App.5th 475, 495-496 [contrasting the abuse of the child in T.R. and reasoning that while domestic violence against the mother alone was not disqualifying as a matter of law, it was one factor to consider].)
Here, as in T.R., we begin our inquiry by determining whether A.C. demonstrated under Family Code section 7611, subdivision (d) that he should be a presumed parent because he “receive[d] the [minors] into [his] home and openly [held] out the [minors] as [his] natural child[ren].” While it was stipulated that A.C. was the biological father of M.C. and N.C., the record reflects many similarities to the facts in T.R. A.C. lived with mother and the minors and represented to others that he was their father, and these factors favored a finding that A.C. is a presumed parent. However, as in T.R., there also are substantial and significant factors weighing against a presumed parent finding. A.C. perpetrated acts of serious physical abuse on the minors and their mother. There was substantial evidence that A.C. grabbed N.C. ; threatened to take M.C. and N.C. to Mexico, away from mother; M.C. believed that A.C. “tried to kill all of them”; and A.C. dragged M.C. through the house and then began choking her which resulted in marks. A.C. did not challenge the juvenile court's finding of physical abuse on appeal. Additionally, the minors had witnessed A.C. physically abuse their mother for years.
Although this case is different from T.R., supra, 132 Cal.App.4th 1202 in that it involves physical abuse rather than sexual abuse, the critical inquiry is not the type of abuse. Rather, the focus is on whether the parent's conduct is so inconsistent with his parental responsibilities that it counterbalances the factors favoring a presumed parent finding. (Id. at p. 1211.) “After all, the premise behind the category of presumed father is that an individual who has demonstrated a commitment to the child and the child's welfare-regardless of whether he is biologically the father-is entitled to the elevated status of presumed fatherhood. [Citation.]” (Id. at pp. 1211-1212.) Here, A.C.'s acts of physical abuse against the minors were detrimental to the minors' welfare and inconsistent with A.C.'s parental responsibilities. Those acts, coupled with A.C.'s admitted substance abuse in the minors' presence, and his perpetration of domestic violence against mother in the minors' presence, counterbalanced the factors supporting a finding that A.C. was a presumed parent.
Moreover, as in T.R., even if the juvenile court should have applied the presumed parent presumption, the error was harmless because there was substantial evidence to rebut the presumption. (T.R., supra, 132 Cal.App.4th at p. 1212.) Where “[d]etermining prejudice” from a juvenile court's error “does not necessarily require ‘a speculative inquiry into what might have occurred in an alternate universe,' ” the error is subject to harmless error review. (See In re James F. (2008) 42 Cal.4th 901, 914-915.) “Rather than categorically deeming errors of a certain type ‘structural' and thus reversible per se, a reviewing court should first consider whether an error in dependency proceedings is amenable” to harmless error review. (In re Christopher L. (2020) 56 Cal.App.5th 1172, 1186, review granted Feb. 17, 2021, S265910.) We find the error in this case amenable to such a review. As the juvenile court observed, the restraining order was set to expire at the end of 2024, and was beyond the time for any reunification services that could be offered. And the court further observed that even if A.C. were elevated to a presumed father, he could be bypassed for services under section 361.5, subdivision (b)(6) for physical abuse, which in this case was severe. (See In re Riva M. (1991) 235 Cal.App.3d 403, 412-413.) Accordingly, we conclude any error was harmless.
Based on the foregoing, we reject A.C.'s arguments that the juvenile court erred in denying his presumed parent status.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: MURRAY, Acting P. J., RENNER, J.