Opinion
NOT TO BE PUBLISHED
Writ petition to review order made at a hearing at which the juvenile court ordered a hearing under Welfare and Institutions Code section 366.26. Emily Stevens, Judge. Super. Ct. No. CK56974
Law Offices of Barry Allen Herzog, Ellen L. Bacon and Stephen Chong for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.
ZELON, J.
Petitioner Javan E. seeks extraordinary relief (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile court’s order denying his section 388 petition seeking to be declared presumed father of Janae E., a dependent child of the juvenile court, and to be granted family reunification services. This order was made during the 12-month review hearing (§ 366.21, subd. (f)) at which time the court entered an order setting a section 366.26 permanency planning hearing. We deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Although the order challenged by Javan E. was not an order “that a hearing pursuant to this section be held” (§ 366.26, subd. (l)), it is subject to section 366.26, subdivision (l) and rule 8.452, California Rules of Court. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022-1024; In re Tabitha W. (2006) 143 Cal.App.4th 811, 816.)
FACTS AND PROCEDURAL BACKGROUND
On January 25, 2007, when Janae was 14 months old, the Los Angeles County Department of Children and Family Services (Department) filed a petition under section 300 to declare her a dependent child of the juvenile court. The petition alleged Janae’s mother, Lakeysha C., engaged in a violent altercation with Janae’s maternal grandmother in Janae’s presence, abused alcohol, and had exposed Janae to extremely cold weather when Janae wore only a diaper and a T-shirt. The petition identified “Jovan E.” as Janae’s alleged father.
The Department’s report for the detention hearing indicated Lakeysha C. told the social worker that Janae’s father, identified by Lakeysha C. as “J. J. Brown,” was not involved in Janae’s life and did not provide financial support. Janae’s paternal grandmother, Consuelo B., told the social worker the father was “Jovan E.,” who was homeless and had a criminal record involving drugs. The court ordered Janae detained, found “Jovan E.” to be Janae’s alleged father, scheduled the jurisdiction hearing for February 15, 2007, and ordered the Department to provide family reunification services and to locate Javan E.
We will hereafter refer to the father as Javan E., which appears to be his true name.
In its report for the jurisdiction and disposition hearing the Department indicated Javan E.’s whereabouts remained unknown despite the social worker’s efforts to locate him. Lakeysha C. had told the social worker Javan E.’s nickname was “J. J.,” he had never provided for her or Janae, and he was not named in Janae’s birth certificate. Consuelo B. told the social worker she did not know Javan E.’s whereabouts and had last seen him around Christmas of 2006. Consuelo B. did not want any mail to be sent to her address, but agreed to take the social worker’s message advising Javan E. of the next court date and location. The Department submitted a declaration of due diligence indicating Javan E. was on probation and a warrant was outstanding for his arrest. The social worker had attempted to contact Javan E.’s probation officer, but was told that because of the warrant a probation officer was not currently assigned.
On February 15, 2007 the juvenile court sustained the dependency petition, as amended to include an allegation that Javan E. had failed to provide for Janae and his whereabouts were unknown. The court ordered no reunification services for Javan E. because he was only an alleged father and his whereabouts were unknown. The court ordered the Department to provide reunification services to Lakeysha C. and continued the matter to August 16, 2007 for the six-month review hearing. (§ 366.21, subd. (e).)
In its report for the six-month review hearing the Department indicated Lakeysha C. had been terminated from her live-in substance abuse program after being found to be under the influence of alcohol, and she had been inconsistent in her visitation with Janae. Lakeysha C. had told the social worker that Javan E. had abused her in the past. Janae’s foster mother, who was not interested in adoption, had indicated she was no longer willing to facilitate Janae’s visitation with Lakeysha C. After the social worker also learned that the foster mother had been permitting Javan E. and Consuelo B. to visit Janae without consulting with the social worker, the Department placed Janae in a new home with a foster mother who wished to adopt her. The Department recommended that Lakeysha C. receive six more months of family reunification services. On August 16, 2007 the court ordered the Department to continue to provide reunification services for Lakeysha C. and continued the matter to February 14, 2008 for the 12-month review hearing. (§ 366.21, subd. (f).)
The Department’s report for the 12-month review hearing indicated Lakeysha C. was incarcerated on a charge of assault with a deadly weapon, had been sentenced to a two-year state prison term, and had made no contact with the social worker during the previous four months. On October 15, 2007, while the social worker was monitoring a visit between the Janae and Consuelo B., Javan E. telephoned Consuelo B. and told the social worker that he was incarcerated and wanted to speak with her about Janae’s case. On November 26, 2007 Javan E. again telephoned and told the social worker that he would soon be released and wished to visit with Janae. The social worker explained that Javan E. had not been granted family reunification services because his whereabouts were unknown. Javan E. stated that he wanted his girlfriend, Toni, to have visits with Janae and possibly move Janae into her home. In later telephone conversations Javan E. told the social worker that he had not demonstrated interest in Janae sooner because he was hiding from the police, but he now wanted to make things right and reunite with Janae. The social worker facilitated two visits between Janae and Toni. Javan E. had recently been convicted of a felony drug charge and sentenced to three years in the state prison. On January 15, 2008 Javan E. wrote to the social worker indicating that he wished to appear for the 12-month review hearing on February 14, 2008. The social worker arranged for Javan E. to be transported to court for the hearing. The Department recommended the juvenile court terminate family reunification services for Lakeysha C. and set a hearing pursuant to section 366.26.
Javan E. was transported from custody for the hearing on February 14, 2008. The court appointed counsel for Javan E., who executed a Statement Regarding Parentage (on Judicial Council form JV-505) averring he was Janae’s father and requesting that the court enter a judgment of parentage. The court continued the 12-month review hearing to April 2, 2008 for a contest.
On March 28, 2008 Javan E. filed a petition under section 388 seeking to be declared Janae’s presumed father and to receive family reunification services. In support of the petition Javan E. submitted a declaration stating as follows: From December of 2005 until December of 2006 Javan E. lived with Janae, provided for her financially, and participated in her daily care. After December of 2006 Javan E.’s relationship with Lakeysha C. ended and he no longer lived with Janae, but he continued to provide for her financially until February of 2007. Javan E. has held Janae out as his child to his family and friends. In August of 2007 Javan E. was incarcerated in the state prison, and since that time he had weekly telephone contact with Janae, who calls him “daddy.”
Section 388 permits any person having an interest in a dependent child to request the juvenile court to change, modify, or set aside a previous order upon grounds of change of circumstances or new evidence and a showing that the proposed change of order will promote the best interests of the child.
On April 2, 2008 the court continued the contested 12-month hearing to April 10, 2008 because Lakeysha C. was not transported from custody. On April 3, 2008 the court set Javan E.’s section 388 petition for a hearing on April 10, 2008.
Lakeysha C. was the first witness when the hearing on Javan E.’s section 388 petition commenced on April 10, 2008. Lakeysha C. testified that when Janae was conceived she was not married to Javan E., was not living with him, and was having sex with other men. After Janae was born Lakeysha C. lived with Javan C. “off and on.” “Maybe a month. Or two. On occasion. Never constant.” Lakeysha C. further testified that Javan E. “made a part in [Janae’s] life, yeah, as the father.” In his own testimony, Javan E. stated the he lived with Lakeysha C. and Janae “on and off” until Janae was detained.
Counsel for Javan E. argued that Javan E. was entitled to presumed father status under Family Code section 7611, subdivision (d). The court rejected counsel’s argument, explaining that Lakeysha C.’s testimony established that Javan E. and Lakeysha C. never had a home together, but were together only “wherever she or he felt like it.” The court stated it gave no weight to the statement in Javan’s declaration in support of his section 388 petition to the effect he lived continuously with Lakeysha C. and Janae for an entire year, because that statement was in direct contradiction with Lakeysha C.’s testimony that they lived together “on and off” or “on occasion,” and in his own testimony Javan E. had agreed that the family lived together “on and off.”
Family Code section 7611, subdivision (d) provides a man “is presumed to be the natural father of a child if . . . [h]e receives the child into his home and openly holds out the child as his natural child.”
Following its exchange with Javan E.’s counsel the court permitted Javan E. to testify further. Javan E. testified that “it was more of us [living] together than not together.” The court asked Lakeysha C. whether she agreed with Javan E.’s statement, and Lakeysha C. testified she did not. Lakeysha C. testified that she lived with her mother during the first five months after Janae was born, and Javan E. did not live in the home. Lakeysha C. then moved with Javan E. to Las Vegas, and during the next four months she went back and forth between Las Vegas and her mother’s home due to “too much confusion and a lot of abuse.” Javan E. then testified that Lakeysha C.’s testimony was not truthful, because “the only time we were apart was when we would argue . . . and I would leave or she would leave just for a matter of days.”
The record indicates Janae was born November of 2005.
After hearing argument the court announced its decision to deny the section 388 petition. The court indicated it believed Lakeysha C.’s testimony regarding the family’s living relationship, which established Javan E. did not receive Janae into his home as required by Family Law section 7611, subdivision (d) for presumed father status. The court also noted that Javan E.’s testimony was inconsistent and changed whenever he was confronted with a different story. The court further pointed out that Javan E. had not come forward and instead went into hiding when he learned that Janae had been detained by the Department, the Department was unable to locate him by the six-month date despite diligent efforts to do so, and Javan E. sought family reunification for the first time after more than 12 months had elapsed from the date of Janae’s detention. The court added that even if it were to grant the section 388 petition Javan E. would not be entitled to family reunification services, because in view of his incarceration there was not a substantial probability that Janae could be returned to him by the 18-month date, which was then three or four months away.
The court stated that “going into a home for a few months of and on after the child is born does not [warrant] presumed father status. . . . That is not receiving a child into the home.”
Under the provisions of section 361.5, subdivision (a), reunification services may not be extended beyond 12 months after the child was originally removed from a parent’s custody unless the court finds that there is a substantial probability that the child will be returned to the parent’s custody by the 18-month date.
DISCUSSION
1. Section 388
A person with an interest in a dependent child who seeks a change of order by section 388 petition must establish by a preponderance of the evidence that (1) there is a change of circumstances or new evidence since the time of the original order, and (2) the proposed change would promote the best interests of the child. (§ 388, subds. (a), (c); In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) The record here establishes Javan E. did not meet either of the requirements of the statute. The “new information” Javan E. alleged in support of the change of order, contained in his declaration in support of the section 388 petition, consisted of his statements that he lived with Janae for a period of time, participated in caring for her, provided for her financially, and held her out as his daughter to family and friends. This “new information” did not constitute a change of circumstances or new evidence as required for a change of order under section 388, because none of the information was new to Javan E. The only thing new was Javan E.’s decision to finally bring the information to the attention of the juvenile court, after hiding out from the Department until almost nine months had elapsed from the time Janae was initially removed from the custody of Lakeysha C.
Nor did Javan E. show that his proposed change of order would be in Janae’s best interests. Regarding this second prong of the section 388 test, Javan E. alleged in his petition that he and Janae had formed a strong relationship during the first year of her life, he had telephone visits with Janae as frequently as once a week since September of 2007, and Janae called him “daddy” during the visits. These statements by Javan E. are insufficient to establish that Janae would benefit if Javan E. were granted reunification services. A primary consideration in determining a child’s best interest is the goal of assuring stability and continuity (In re Angel B. (2002) 97 Cal.App.4th 454, 464), and this consideration assumes an increasingly important role in the later stages of dependency proceedings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In this case only four months remained before the 18-month statutory limit for reunification when Javan E. filed his section 388 petition, and Javan E. had recently been sentenced to a state prison term of three years. Under these circumstances it would have been impossible for Javan E. to obtain custody of Janae before the statutory period of reunification expired. As a result, Javan E. could not show that Janae’s interests would be promoted by his requested change of order. Moreover Javan E. did not even attempt to show at the hearing on his section 388 petition that the change of order would promote Janae’s interests, and nor does he address this issue in the instant petition. Considering the entire factual and procedural history of the case, the juvenile court acted well within its discretion in denying Javan E.’s section 388 petition. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
2. Family Code Section 7611, Subdivision (d)
Section 7611, subdivision (d) provides that a man is presumed to be the father of a child if he “receives the child into his home and openly holds the child out as his natural child.” For the presumption under section 7611, subdivision (d) to arise, Javan E. had the burden of establishing by a preponderance of the evidence both of the elements of the statute. Thus, the burden of proof rested on Javan E. to show that he received Janae into his home and that he openly and publicly acknowledged paternity. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652-1653.)
Only presumed fathers are entitled to custody and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449.
Substantial evidence supports the juvenile court’s rejection of Javan E.’s claim to presumed father status. As set forth above, the evidence shows that Javan E. took no steps to have his name put on Janae’s birth certificate or to establish paternity by legal action. At the hearing on Javan E.’s section 388 petition Lakeysha C. testified that Javan E. did not live with her and Janae during the first five months after Janae was born, and after that he lived with them “maybe a month,” “off and on,” or “on occasion.” The trial court found Lakeysha C.’s testimony to be credible and did not believe Javan E.’s conflicting testimony. The court further found that on the basis of Lakeysha C.’s testimony, together with Javan E.’s own statements that he had told only some people (family and friends) that Janae was his daughter, Javan E. did not show that he provided a home for Janae and openly held her out as his child. On this record, the juvenile court properly found that Javan E. failed to demonstrate a consistent commitment to assume the burdens of fatherhood and thus to meet the two elements necessary to invoke the presumption set forth in section 7611, subdivision (e) (In re Spencer W., supra, 48 Cal.App.4th at p. 1653; In re Sarah C. (1992) 8 Cal.App.4th 964, 972-973), and correctly declined to confer presumed father status on Javan E.
When we review the juvenile court’s finding under the substantial evidence standard, we inquire only whether there is any evidence, contradicted or uncontradicted, that supports the court’s determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
DISPOSITION
The petition is denied on the merits.
We concur PERLUSS, P. J., WOODS, J.