Opinion
A117987
4-16-2008
In re T.F., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JAMES F., Defendant and Appellant.
NOT TO BE PUBLISHED
James F. is the alleged father of T.F. and, according to his testimony and the testimony of mother, he is also the biological father of T.F. James never lived with mother or T.F. M.G., another alleged father of T.F., moved into mothers home when T.F. was nine months old and lived with them for eight years.
In 2007, Alameda County Social Services Agency (agency) filed a petition alleging that mother failed to protect T.F. under section 300, subdivisions (b) and (g). Both James and M.G. appeared at the detention hearing as alleged fathers and, subsequently, the juvenile court found M.G. to be the presumed father and James not to be the presumed father. The court also determined that visitation between James and T.F. was not in the childs best interests and denied James visitation. James appeals the presumed father and the visitation rulings. We are unpersuaded by his argument and affirm the judgment.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
The Petition and Detention
Agency filed a petition on February 20, 2007, alleging that T.F., who was born in 1997, comes within subdivisions (b) and (g) of section 300. Under subdivision (b), the petition alleged that mother had a history of substance abuse that interfered with her ability to parent and that, on February 15, 2007, she left T.F. at a relatives house in order to use illegal drugs. The petition further alleged that the relative could no longer care for T.F., that mother had a pattern of leaving T.F. with relatives while using illegal drugs, and that mother had a chronic history of unstable housing.
The petition reported that both James and M.G. were alleged fathers. With regard to James, the petition alleged that he was a sex registrant under Penal Code section 290. The petition asserted that the ability of alleged father M.G. to provide care and support for T.F. was unknown.
Agency prepared a detention report that it filed on February 21, 2007. The report stated that James is a sex registrant pursuant to Penal Code section 290 as a result of his conviction in December 1994 of Penal Code section 288, subdivision (a). The report further stated that James asserted that he was at the hospital for T.F.s birth. At the time of T.F.s birth, James was living with his brother, but he had lived with mother in 1993 or 1994 until he was arrested in November 1994 for sexual abuse charges. He further maintained that he had provided some financial support to T.F. from his Social Security disability check, and that he had visited her "sporadically." He admitted that T.F. knew M.G. as her father, but she would tell people that her "real father" was James. Mother stated that James is listed on T.F.s birth certificate.
Mother reported that she married M.G. in 2000, but divorced him in 2002. M.G. denied having a criminal record and reported that he worked full-time as a truck driver. He indicated that mother could not live with him, but that he "would be happy to care for" T.F.
At the detention hearing on February 21, 2007, the juvenile court appointed counsel for each of the alleged fathers, James and M.G. At the hearing, counsel for M.G. stated that M.G. was prepared to have T.F. placed with him if that were a possibility. The court explained: "The problem I see is from my reading of the legal record here, [James] may be a presumed father. Hes on the birth certificate. He apparently helped at least to care for her for some time and is still providing some financial support. And given the Family Code sections that govern this, he has a pretty good claim there. [¶] Thats not to say that [M.G.] could not be legalized as a placement, but I think wed almost have to do a fictive kin analysis there, would we not?" Agency agreed with the courts analysis.
The juvenile court concluded that there would have to be a thorough background check and home evaluation before placing T.F. with anyone. The court ordered T.F. detained in a temporary out-of-home placement.
The Uncontested Jurisdiction and Disposition Hearing
Agencys jurisdiction and disposition report filed on March 7, 2007, recommended that T.F. be declared a dependent of the court and that mother should receive reunification services. It recommended that neither of the alleged fathers should receive reunification services until either of them established a legal basis for receiving services. Agency did not recommend visitation with James because he was a sex registrant pursuant to Penal Code section 290.
The social worker learned that mother had been married to M.G. in 2000, divorced in 2002, and then married him again in 2004 and divorced him again in 2005. The petition stated that M.G. was now living at the Henry Robinson Center with one of his five sons. It further asserted that M.G. had been acting as T.F.s father since she was nine months old, and T.F. had stayed with the mother of M.G.s other children for about one month in December 2006. M.G.s children, according to the report, considered T.F. to be their sister. M.G. stated that he "would be in agreement with [T.F.] living with the maternal grandmother."
At the uncontested jurisdiction and disposition hearing on March 7, 2007, the court ordered one supervised visit with James; agency had the discretion to determine additional visitation if the supervised visitation went well. The court ordered unsupervised visitation for M.G. and supervised visitation with mother. Mother and M.G. requested a contested hearing and the court set a hearing to determine the question of presumed father status.
Presumed Father Status
At the contested jurisdiction and disposition hearing on March 19, 2007, both James and M.G. requested presumed father status. Mother objected to either alleged father having presumed father status. The parties agreed to have the presumed father status determined prior to the other issues.
M.G. testified that he began living with mother when T.F. was nine months old; he lived with both mother and T.F. for eight years. He had been married to mother twice, although not when T.F. was conceived. In addition to not being T.F.s biological father, he also testified that he did not believe he was named on her birth certificate. He stated that T.F. saw James about six or seven times during the eight years he resided with mother and T.F. He acknowledged, however, that T.F. knew James was her biological father.
M.G. stated that he acted as T.F.s father for the eight years he lived with mother and T.F. T.F. called him "dad" and he took care of her. He played with her, went to parks with her, and helped her with her homework. After the relationship between mother and him "fell apart," he continued to see T.F. once or twice a week. He reported that T.F. lived with his children for about one month in December 2006.
M.G. also indicated that he had prepared to have T.F. live with him and that Henry Robinson Center had a two-bedroom apartment available if T.F. came to live with him. Currently, his son and he were living in a one-bedroom apartment. He considered himself to be T.F.s father, although he admitted that he had never filed any papers attempting to have any legal rights related to T.F. or to be declared her father.
Mother testified that M.G. gave her money each month for food and bills when they were living together and provided some financial support for T.F. She reported that she provided more support for T.F. than M.G.; she paid the rent and bought food. T.F. referred to M.G. as "my daddy," according to mother, but mother reported that T.F. knew James was her biological father.
James testified that he was T.F.s biological father. He claimed that he had seen T.F. about 100 times since her birth, and had never denied that she was his biological child. T.F. had never stayed with him overnight. Additionally, he had not seen T.F. since she was in foster care. Both James and mother testified that T.F. received Social Security benefits through him. He stated that he never saw T.F.s birth certificate, but then testified that he signed it. He then clarified that he signed some document while at the hospital but he did not actually see the birth certificate. He also stated that he had not undergone any genetic testing to determine paternity. James stated that he did not have a problem with T.F. going to live with M.G.
Mother has another daughter older than T.F. and James testified that he was also the biological father of that daughter.
After further briefing, the juvenile court issued its decision at the continued hearing on March 29, 2007. The court noted that there could be only one presumed father. The court observed that James "did not admit into evidence any birth certificate at the time of trial indicating that he is named as [T.F.s] father on the birth certificate. Certainly he also did not admit into evidence any signed voluntary declaration of paternity. [James] testified at the time of trial that he never saw the birth certificate." The court concluded that James failed to meet his burden of establishing that his name was on T.F.s birth certificate, as he did not submit the certificate into evidence and testified that he never saw it. The court therefore ruled that James was not entitled to rely on the presumption of section 664 of the Evidence Code regarding the voluntary declaration of paternity that must be filed at the Department of Child Support Services under Family Code section 7573.
The court also determined that James was not a presumed father under the Family Code. It noted that the evidence was "clear" that he never received T.F. into his home and never underwent any type of paternity testing. The court stated that it was specifically finding that James was not T.F.s presumed father, but was the alleged father.
With regard to M.G., the court stated that a man was not required to produce evidence of biological paternity to be declared a presumed father under Family Code section 7611. Further, not being the biological father did "not override the ability of this court to find [M.G.] the presumed father of [T.F.]." The court concluded that, under the totality of the evidence, M.G. was a presumed father under Family Code section 7611, subdivision (d). The court noted that mother and M.G. lived together for over eight years and M.G. treated T.F. as "his natural child." The evidence also established that T.F. considered M.G. to be her father and that M.G. treated her no differently than his biological children. The court also determined that M.G. contributed financially to the support of T.F. The court considered the social relationship developed between M.G. and T.F. more significant than a biological relationship.
The Amended Petition and Contested Jurisdiction and Disposition Hearing
Agency filed an amended petition on March 29, 2007. The petition added allegations that the presumed father, M.G., had a history of substance abuse, which periodically interfered with his ability to parent. Additionally, he had a history of arrests and convictions for domestic violence. Relatives told the social worker that M.G. had used illegal drugs with mother.
At the hearing on April 3, 2007, counsel for T.F. reported that mother had alleged that T.F. had been molested by M.G.s son and that son was currently living with M.G. Mother testified that M.G. and she used cocaine daily while T.F. was in the home. She stated there were incidents of domestic violence involving M.G. everyday or "like every other day." T.F. witnessed the incidents, which involved mother and M.G. hitting each other. Mother also testified about two alleged incidents in 2006 where M.G.s son molested T.F. while in their home. On cross-examination, she admitted telling her mother and the case worker about the molestation after the court ruled that M.G. was the presumed father. She did not want T.F. to live with M.G. and was afraid of M.G.
The court set a further hearing for May 30, 2007.
Agency filed an addendum report on May 30, 2007. Agency recommended that T.F. be declared a dependent of the court and that mother and M.G. receive reunification services. It did not recommend reunification services for James until he established a legal basis for receiving services.
The case worker stated in the report that she spoke with T.F. on March 30, 2007, about the alleged sexual abuse by M.G.s son. T.F. reported that the incident happened when the boy was 14 years old and she was seven years old. T.F. said that he made her sit on his lap when she did not want to do that. However, she claimed that he did not touch her inappropriately, did not hit her, and did not make her do anything in a sexual manner.
According to the report, T.F. was staying with her maternal grandmother who reported that M.G. had not visited or called T.F. since the beginning of April. Mother had filed a restraining order against M.G. in early April 2007 and, since T.F. was also named on the restraining order, M.G. stopped visiting T.F. M.G. told the case worker that the restraining order matter was heard and dropped on April 23, 2007, but he was advised by the judge to stay away from everyone. M.G. mentioned that two of his other children had run away from their mothers home in April and now three of his sons were residing with him at the Henry Robinson Center housing program.
At the hearing on May 30, 2007, the parties agreed to a few minor changes to the petition. Counsel for T.F. told the court that T.F. was doing well with her maternal grandmother and everyone agreed that she should stay with her for now. Counsel requested visitation with M.G. to resume as T.F. wanted visitation with him to continue. Counsel stated that T.F. was not requesting visits with James, but James through his counsel had asked to be able to "check-in" with the grandmother.
James submitted through his counsel on the issue of visitation. James, speaking directly to the court, stated that T.F. had not personally told him that she did not want to see him. He said that he would like to speak to her and have her tell him that she did not want to see him because he did not really believe it. Counsel for T.F. responded, "[W]e dont make children tell parents to their face that they dont want to see them. . . ." The court agreed and advised James that T.F. had an attorney and the court trusted that "what she tells her attorney is true." James questioned why on a previous occasion T.F. seemed to be having a good time with him in court and then did not want to see him. The court replied that it would rely on her attorneys comments and the statements of the child welfare worker.
The juvenile court found the allegations of the petition as amended true. The court declared T.F. a dependent of the juvenile court and found that there was clear and convincing evidence that she must be removed from the physical custody of mother. The court ordered visitation between mother and T.F. and between M.G. and T.F. The court stated that agency was not required to provide reunification services to James because he was an alleged father, "unless and until he establishes a legal basis for receiving those services."
James filed a timely notice of appeal from the order finding that he was not the presumed father and from the disposition order.
DISCUSSION
I. Presumed Father Status
James challenges the lower courts determination that M.G. is the presumed father of T.F. Although his argument is somewhat muddled, he argues that he was the presumed father under Family Code section 7611, subdivision (d), and M.G. did not satisfy the criteria under the Family Code. Further, if M.G. did meet the presumption under the Family Code, the weighing of the evidence should have resulted in the courts finding him to be the presumed father.
James, as the alleged father and an interested party, appeared at the proceedings below and has standing to challenge the denial of his request to become a presumed father and the denial of visitation. (See, e.g., In re Joseph G. (2000) 83 Cal.App.4th 712, 715; Said v. Jegan (2007) 146 Cal.App.4th 1375, 1382.) Agency did not contest Jamess assertion of standing.
A. Categories of Fathers
The rights to which a father is entitled depend upon his status under the dependency statutes. The dependency statutes distinguish between three categories of fathers: presumed, alleged, and biological or natural. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The Family Code sets forth the criteria for determining presumed father status, which are, in pertinent part: a man marries or attempts to marry the childs mother, he and the mother execute a voluntary declaration of paternity, or he receives the child into his home and openly holds out the child as his natural child. (Fam. Code, §§ 7571; 7573; 7611, subds. (a)-(d).) A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the childs presumed father. (In re Zacharia D., supra, at p. 449, fn. 15.) An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. (Ibid.)
In dependency proceedings, a mans status as a presumed father is critical. (In re O.S. (2002) 102 Cal.App.4th 1402, 1410.) "[P]resumed fathers possess far greater rights than alleged or biological fathers. [Citation.] Only a presumed, not a mere biological, father is a `parent entitled to receive reunification services, and only a presumed father is entitled to custody of his child. [Citation.] In contrast, the juvenile court `may order reunification services for a biological father if the court determines that the services will benefit the child." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596; see also In re A.A. (2003) 114 Cal.App.4th 771, 779-780.)
Here, both M.G. and James were alleged fathers, and the testimony indicated that James was the biological father. Both M.G. and James separately requested a determination that he was the presumed father under Family Code section 7611. Although more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, "there can be only one presumed father." (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1115.)
B. Standard of Review
James argues that the court abused its discretion when it concluded that M.G. was the presumed father. Once a court concludes that two alleged fathers have met the criteria for presumed father status under Family Code section 7611, we review the weighing of these presumptions for the abuse of discretion. (See, e.g., In re Jesusa V. (2004) 32 Cal.4th 588, 606-607.)
In the present case, however, the lower court never did any weighing because it determined that James failed to satisfy the criteria for presumed father status under Family Code section 7611. The court expressly found: "The court, therefore, denie[d] [Jamess] request to be determined the presumed father of [T.F.] based upon [Family Code section 7611, subdivision (d)] and specifically finds that [James] is not [T.F.s] presumed father."
Much of Jamess opening brief in this court is devoted to arguing that the trial court abused its discretion in weighing the competing presumptions. It appears that James has confused the courts consideration of competing claims of presumed father status with the courts consideration of competing presumptions; he focuses almost exclusively on the latter in his opening brief. As already stressed, James and M.G. had competing claims to presumed father status, but the lower court never had to consider competing presumptions because it denied Jamess claim to presumed father status when it found that he did not fulfill the criteria under Family Code section 7611.
We review the lower courts denial of presumed father status under the substantial evidence test. (In re A.A., supra, 114 Cal.App.4th at p. 782.) "In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the courts finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." (In re N.S. (2002) 97 Cal.App.4th 167, 172.) We have no power to judge the effect or value of, or to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in, or make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
However, substantial evidence is not synonymous with any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) "A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, `[w]hile substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]. [Citation.] `The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. " (Id. at pp. 1393-1394.)
C. The Courts Finding that James is Not a Presumed Father under the Family Code
In dependency cases, an alleged father may obtain presumed father status by showing by a preponderance of the evidence the foundational facts that support one of the presumptions set forth in Family Code section 7611. (See, e.g., In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.) "Presumed fatherhood, for purpose of dependency proceedings, denotes one who `promptly comes forward and demonstrates a full commitment to his paternal responsibilities—emotional, financial, and otherwise[.]" (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.)
Family Code section 7611 provides that "[a] man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: [¶] (a) He and the childs natural mother are or have been married to each other and the child is born during the marriage . . . . [¶] (b) Before the childs birth, he and the childs natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid . . . . [¶] . . . [¶] (c) After the childs birth, he and the childs natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid . . . . [¶] . . . [¶] (d) He receives the child into his home and openly holds out the child as his natural child. . . ."
Family Code section 7573 reads: "[A] completed voluntary declaration of paternity, as described in Section 7574, that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. . . ." Although James claimed to have signed something, he did not know what he signed and there was no documentary evidence that he satisfied Family Code section 7573. James does not argue on appeal that he was a presumed father under this provision.
Family Code section 7540, which is irrelevant to the facts of this case, provides: "Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage."
In the present case, the only provision that possibly applies to James is Family Code section 7611, subdivision (d). Although James may have presented some evidence that he held T.F. out as his natural child, he must satisfy both conditions: received her into his home and openly held her out as his natural child. The record is quite simply devoid of any evidence that James received T.F. into his home and the lower court expressly found that James "never received [T.F.] into his home."
Other than provide some financial support for T.F., acknowledge that she was his biological child, be present at the hospital when she was born, and sign some document while at the hospital, James did nothing to develop a parental bond with T.F. He never requested a paternity test and did not file any legal papers seeking a paternity determination. Moreover, James testified that T.F. never lived with him. It is true that T.F. did not have to live with him for the court to find that he received her into his home (see In re A.A., supra, 114 Cal.App.4th at p. 784), but James did not indicate that he had any type of significant relationship with T.F. or had bonded with T.F. He acknowledged that T.F. never spent an overnight visit with him. James testified that he saw T.F. about 100 times during her first nine years, while M.G. reported that T.F. saw James about six or seven times during the eight years he lived with mother and T.F. Even if the court believed Jamess testimony, 100 visits in a nine-year time span is not sufficient to develop a significant relationship. There was no evidence that James participated in any activities with T.F. or took her on any outings. Additionally, James had not visited T.F. since she had been placed in foster care. James even stated that he did not object to T.F. living with M.G. James provided no reason for his minimal interaction with T.F. and never asserted that mother or M.G. prevented him from visiting or spending more time with T.F.
James did not demonstrate " `a full commitment to his paternal responsibilities—emotional, financial, and otherwise[.] " (In re Jerry P., supra, 95 Cal.App.4th at pp. 801-802.) Accordingly, we conclude that James failed to meet his burden of establishing by a preponderance of the evidence (In re A.A., supra, 114 Cal.App.4th at p. 78) that "[h]e receive[d] the child into his home and openly [held] out the child as his natural child" (Fam. Code, § 7611, subd. (d)). Since James did not establish the presumption under the Family Code, the court did not need to weigh competing presumptions but simply needed to determine whether M.G. showed that the presumption applied to him.
D. Finding that M.G. Qualified as a Presumed Father
James challenges the courts finding that M.G. is a presumed father under Family Code section 7611, subdivision (d). We conclude that substantial evidence supported this finding.
M.G. received T.F. into his home and openly held her out as his natural child. (Fam. Code, § 7611, subd. (d).) As to the first element, M.G. lived with mother and T.F. for eight of her nine years. He gave mother money for food and household expenses each month. He bought clothes, shoes, socks, and underwear for T.F.
The record also contains substantial evidence to support the finding that M.G. openly held T.F. out as his natural child. A presumed father does not have to be a biological father. (See In re Nicholas H. (2002) 28 Cal.4th 56, 63.) T.F. called M.G. "dad" and he took care of her. He played with her, went to parks with her, and helped her with her homework. After the relationship between mother and him "fell apart," he continued to see T.F. once or twice a week. M.G. continued to visit T.F. after she was detained and in a foster home until mother filed a restraining order against him in April 2007.
James cites to evidence in the record indicating that M.G. did not meet the criteria of a presumed father. As such, he points out that M.G. did not file any legal papers to become T.F.s father; he did not meet T.F. until she was nine months old; he moved into mothers home rather than having mother and T.F. come to his home; mother paid more of the bills; and M.G. believed James was the biological father.
We agree that some of the evidence in the record indicates that M.G. had not acted as T.F.s presumed father, but our role is not to reweigh the evidence. The question before us is whether substantial evidence supported the lower courts decision. We conclude that M.G. presented sufficient evidence to establish that he received T.F. into his home and held her out to the world as his natural child.
II. Visitation
James argues that he should have visitation with T.F. We review the denial of visitation to a biological father for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 589.) " `The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We may not disturb the juvenile courts decision unless the court " `"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." " (Id. at p. 318.)
In ruling upon visitation, the courts "overarching concern" is the best interest of the child. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Here, the record supports the lower courts determination that visitation between T.F. and James was not in T.F.s best interest.
Counsel for T.F. reported that T.F. did not want to see James. At the hearing, James challenged this statement and stated that he did not believe it. However, the juvenile court properly did not want to make T.F. state this directly to him and accepted counsels statements as true. Further, the court considered that James is a registered sex offender. Finally, the record established that T.F. did not have much of a relationship with James and there was no evidence of any significant bond. Consequently, the lower court concluded that visitation would not be beneficial for T.F.
As an alleged or biological father, James did not have a right to court ordered services, including visitation. We conclude that the lower court reasonably determined that court ordered visits were not in T.F.s best interests.
DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Richman, J.