Opinion
F073961
02-24-2017
In re S.C., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. SAMUEL C., Defendant and Appellant.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Brian C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. JD135713)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Judge. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Brian C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
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FACTS
On November 25, 2015, Butte County Children's Services Division ("Butte County") filed a Welfare and Institutions Code section 300 petition in Butte County Juvenile Court. The petition alleged that S.C., who was less than one week old, tested positive for opiates and was experiencing the early stages of withdrawal. The petition further alleged that D.R. ("mother") regularly used methamphetamine, heroin, methadone and marijuana throughout her pregnancy and tested positive for methamphetamine, THC, methadone and opiates days before S.C.'s birth. The petition also alleged that mother's current boyfriend had regularly used methamphetamine, heroin, methadone and marijuana with mother "since meeting her approximately five months ago." The whereabouts of S.C.'s biological father were unknown.
Detention Hearing
The detention hearing was held on November 30, 2015, in Butte County Juvenile Court. Appellant Samuel C. (Samuel) appeared at the hearing and identified himself as "the baby's mother's boyfriend." Samuel asked to be named S.C.'s presumed father and noted that he was listed on her birth certificate. Samuel said he was not S.C.'s biological father and had only known mother for five months. However, he admitted that, at the hospital, he had signed a declaration under penalty of perjury stating that he was S.C.'s biological father.
Mother arrived late to the detention hearing. She said Samuel was S.C.'s "father" but said that Gerald H. might be the "biological father." She also admitted that she signed a declaration at the hospital indicating that there was no possibility that someone other than Samuel was S.C.'s biological father.
The court detained S.C., ordered that services be provided to "the family," and appointed counsel for Samuel.
Jurisdiction Hearing
The jurisdiction hearing was held on January 21, 2016. Before mother and Samuel eventually appeared via telephone, Samuel's counsel told the court that he had advised Samuel: "[H]e's only an alleged father, and he can't perfect being a presumed father without some sort of contact with the child. I explained to him that in my understanding he's not really a player. He doesn't have any say about jurisdiction, or anything else at this point."
Certain allegations in the petition were amended, and thereafter mother and Samuel "submitted" on the amended allegations. The court found true the allegations in the petition. The court then observed that the case would be transferred to Kern County.
Transfer
Kern County's Department of Human Services ("DHS") filed a "social study" ahead of a "transfer-in" hearing in Kern County Superior Court. (See Cal. Rules of Court, rule 5.612.) The social study report referred to Samuel as a "presumed" father (see Fam. Code, § 7611), even though it does not appear any such determination had been made by the Butte County Superior Court. However, at the transfer-in hearing on March 21, 2016, counsel for DHS asserted that other information received from the clerk's office indicated that Samuel was merely an "alleged" father. Counsel further said she was "hoping the court would issue paternity tests just to clarify."
All further statutory references are to the Family Code unless otherwise stated.
Kern County claims on appeal that the social worker incorrectly identified Samuel as a presumed father.
Mother testified at the transfer-in hearing that she had never been married. She further testified that she was having sexual relations with Gerald H. when she became pregnant with S.C. Mother met Samuel when she was about six and one-half or seven months into her pregnancy. During her pregnancy, mother lived with Samuel. He supported mother and bought "items" in preparation of S.C.'s birth. Mother and Samuel intended to live together as a family with the child, but ultimately S.C. never lived with them because she was detained at the hospital. It was mother's understanding that Samuel has held S.C. out to be his daughter. Samuel never denied being S.C.'s father.
The reporter's transcript says "Jared [H.]" but other evidence makes it clear that mother was referring to Gerald H. The briefing of both parties on appeal identifies the man as Gerald H.
When mother found out she was pregnant, Gerald H. told her to get an abortion and never attempted to see S.C. Mother never lived with Gerald H., and he never supported mother during her pregnancy.
After mother's testimony, Samuel's counsel requested that his client be elevated to presumed father status. Samuel stipulated that he is not the biological father of S.C. The court ruled that it would not elevate Samuel to a presumed father "at this point," but clarified that the ruling was made "without prejudice," and that it would reconsider the issue if counsel wanted to file briefing.
Samuel was granted monthly visits of one hour each.
Briefing
On April 22, 2016, Samuel filed a memorandum of points and authorities in support of his request for presumed father status. Samuel argued that the fact he is not S.C.'s biological father was not dispositive as to whether he could attain presumed father or Kelsey S. status. DHS filed points and authorities in opposition to Samuel's request for presumed father status. Samuel filed a supplemental brief thereafter.
Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).
Disposition Report
DHS filed a "social study" ahead of the disposition hearing. S.C. appeared to be developmentally on target for her age. She was placed in the home of her maternal aunt since April 11, 2016. Before that, she had been placed with her maternal grandmother.
On April 14, 2016, Samuel met with a social worker named Stephany Foster. Foster asked if he would submit to a random unannounced drug test and he agreed. But he said he "was going to be dirty." Foster went to retrieve a male to administer the test, but Samuel left before the male social worker came.
Samuel completed an orientation appointment at a counseling center. But he failed to complete the program and was discharged on April 26, 2016.
Samuel and mother only visited the child once, on December 21, 2016.
Dependency Court's Ruling
At the disposition hearing, the court declined to elevate Samuel to presumed father status. The court reasoned that since Samuel knew he was not the biological father when he signed the declaration of paternity, the court would not find that he has met the statutory requirements of presumed fatherhood. Samuel's counsel then requested that he be deemed a Kelsey S. father. DHS argued that there was insufficient evidence that Samuel met the requirements of Kelsey S. status. The court denied Samuel's request and dismissed him from the case.
The court initially indicated its denial was "without prejudice," but the court subsequently dismissed Samuel from the case entirely.
Samuel now appeals his dismissal.
DISCUSSION
I. Validity of the Voluntary Declaration of Paternity
Samuel argues that the voluntary declaration of paternity he executed in the hospital was "valid" and was not rescinded or set aside by parties authorized to do so by statute.
DHS asks that we judicially notice a blank Declaration of Paternity form. We do not find the blank form material to the issues presented on appeal and deny the request.
A voluntary declaration of paternity ("VDP") is a form that includes "[a] statement by the father that he has read and understands the written materials described in [Family Code] Section 7572, that he understands that by signing the voluntary declaration of paternity he is waiving his rights as described in the written materials, that he is the biological father of the child, and that he consents to the establishment of paternity by signing the voluntary declaration of paternity." (§ 7574, subd. (b)(6).) The VDP must also contain a statement from the mother indicating, among other things, that "the man who has signed the voluntary declaration of paternity is the only possible father, and that she consents to the establishment of paternity by signing the voluntary declaration of paternity." (§ 7574, subd. (b)(5).) The VDP must also identify the child by name and date of birth, contain signatures of the mother, father and a witness. (§ 7574, subd. (b)(1)-(4) & (7).)
With certain exceptions, "a completed voluntary declaration of paternity ... 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. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support." (§ 7573.)
Under section 7612, a VDP is invalid if, at the time it was executed, any of the following conditions existed:
"(1) The child already had a presumed parent under Section 7540.
"(2) The child already had a presumed parent under subdivision (a), (b), or (c) of Section 7611.
"(3) The man signing the declaration is a sperm donor, consistent with subdivision (b) of Section 7613." (§ 7612, subd. (f).)
Samuel argues that the VDP was valid because none of these three conditions existed. DHS concedes that none of these three conditions applies. Nonetheless, DHS argues the VDP was void ab initio because Samuel knew he was not the biological father when he executed it. Essentially, DHS is arguing that the VDP should be invalidated on the basis of intrinsic fraud. (See J.R. v. D.P. (2012) 212 Cal.App.4th 374, 387-388.) However, while "an equitable collateral attack on the VDP is available on the grounds of extrinsic fraud," a VDP cannot be invalidated on the basis of intrinsic fraud. (In re William K. (2008) 161 Cal.App.4th 1, 10.)
A VDP has the same force and effect as a judgment. (§ 7573.)
" 'The type of fraud necessary to vacate a final judgment is extrinsic fraud, not fraud which is intrinsic to the trial of the case itself. [Citation.] Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding....' " (County of Orange v. Superior Court (2007) 155 Cal.App.4th 1253, 1261.)
Conversely, perjury and false documents constitute intrinsic fraud. (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 27.)
DHS acknowledges the rule concerning intrinsic fraud, but argues its purposes would not be furthered by applying it here. DHS quotes Pico v. Cohn (1891) 91 Cal. 129:
"The wrong, in such case [i.e. where a judgment or order has been obtained by intrinsic fraud] is of course a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice ...." (Id. at p. 134.)
DHS simply claims, in conclusory fashion, that the "case at bar presents no risk of endless re-litigation of issues based on claims of intrinsic fraud." DHS does not elaborate as to why the present case is different from others where the extrinsic fraud rule is applied. Nor does DHS address case law indicating the extrinsic fraud rule applies to voluntary declarations of paternity. (See In re William K., supra, 161 Cal.App.4th at p. 10; see also Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016), ¶ 6:6.6 ["... fraud or perjury will support a set-aside only if the act induced the defrauded parent to sign the paternity declaration ..."].)
Consequently, we conclude the VDP is not invalid on the grounds of intrinsic fraud. However, even a valid VDP may be set aside in certain circumstances. We explore that issue below.
II. Setting Aside a VDP
A. Additional Facts
At the transfer-in hearing, Samuel requested presumed father status. County counsel indicated that Samuel's "presumption" could only be set aside with DNA testing. Later in the discussion, the court observed that it was undisputed Samuel was not the biological father and ordering a DNA test would be a mere "academic exercise." After additional dialogue, county counsel said,
"Judge, I would just like to make a record that it's my understanding the only way to set aside the presumption from the signing is via DNA testing. If everyone can stipulate that DNA is not necessary and he's not the biological father, that's fine. I'm just concerned we don't have an adequate record."
After more discussion, Samuel did stipulate through counsel that he is not S.C.'s biological father. The court accepted the stipulation and denied Samuel's request for presumed father status.
B. Analysis
We conclude that in these circumstances, the court was empowered to set aside the VDP based on Samuel's stipulation that he was not the biological father. Section 7575, subdivision (b)(1) provides that if genetic testing shows "that the man who signed the voluntary declaration is not the father of the child, the court may set aside the voluntary declaration of paternity unless the court determines that denial of the action to set aside the voluntary declaration of paternity is in the best interest of the child" after considering certain statutory factors. (§ 7575, subd. (b)(1).) Thus, under section 7575, a DNA test showing Samuel was not the biological father would have enabled the court to set aside the VDP so long as it was in the best interests of the child. Here, a DNA test was unnecessary because Samuel stipulated in open court that he was not the biological father. (See Civ. Code, § 3532 [law does not require idle acts].) Consequently, we conclude the stipulation sufficed in place of DNA testing under section 7575.
Samuel observes that section 7575, subdivision (a) only permits the signatories to the VDP to rescind it. But a court may order genetic tests on its own initiative. (§ 7551.)
1. Remand
While the dependency court's reasoning showed it was discounting the importance of the VDP because Samuel was not the biological father, the dependency court did not expressly "set aside" the VDP under section 7575. Instead, the court styled its ruling as a denial of Samuel's request for presumed father status. We are upholding the dependency court's reliance on Samuel's stipulation that he is not S.C.'s biological father. But the fact that Samuel is not S.C.'s biological father does not resolve the ultimate issue. Section 7575 permits a court to uphold a VDP even in instances where genetic testing shows the male signatory is not the biological father. (§ 7575 subd. (b)(1).) The statute directs courts to consider certain factors, such as the age of the child, the relationship between the signatory and the child, etc. (§ 7575, subds. (b)(1)(A)-(H).) If, after consideration of those factors, the court concludes that upholding the VDP is in the best interest of the child, it may do so even if genetic testing showed the male signatory is not the child's biological father. (§ 7575, subd. (b)(1).) Because the dependency court did not expressly set aside the VDP, it apparently did not consider these statutory factors, and we will remand the matter so that it may do so. Section 7575 requires that if a dependency court declines to set aside a VDP, it "shall state on the record the basis for the denial" of the request to set aside the VDP. (§ 7575, subd. (b)(1)(H)(2).)
We express no opinion on how the court should weigh those factors on remand.
C. Presumed Father Status
1. Presumed Father Status Arising Solely from the VDP
DHS notes that some courts have held a VDP automatically grants the male signatory presumed father status (In re Liam L. (2000) 84 Cal.App.4th 739) while others have concluded otherwise (In re Jovanni B. (2013) 221 Cal.App.4th 1482 (Jovanni B.)). If the dependency court sets aside the VDP on remand, this issue will be mooted.
Regardless, we agree with Jovanni B. that " '[Family Code] section 7573[] mandate[s] that a completed voluntary declaration of paternity "shall have the same force and effect as a judgment for paternity ..." [and] a paternity judgment does not entitle a man to presumed father status in a dependency action. [Citations.] If a voluntary declaration of paternity were to give a man presumed father status ... the voluntary declaration would not have "the same force and effect" as a judgment - it would have a force and effect different than, and superior to, a judgment.' " (Jovanni B., supra, 221 Cal.App.4th at p. 1493, original italics.)
2. Other Grounds Alleged for Presumed Father Status
Samuel argues he is entitled to presumed father status on "other grounds." We disagree.
"If the child's biological mother and the potential presumed parent were not married or did not attempt to marry around the time of the child's birth, presumed parent status must be demonstrated through section 7611, subdivision (d), which requires, 'The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.' " (In re Alexander P. (2016) 4 Cal.App.5th 475, 485.) Samuel did not receive S.C. into his home because she was detained at the hospital shortly after her birth. Consequently, he is not a presumed father.
Nonetheless, he contends that he qualifies as a Kelsey S. or Jerry P. father because his is a "case[] where the father cannot physically take the child into his home because ... the [child protection agency] has taken custody of the child ...." (Jerry P., supra, 95 Cal.App.4th at p. 807.)
In re Jerry P. (2002) 95 Cal.App.4th 793 (Jerry P.).
"Under Kelsey S., '[i]f 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.' [Citation.]" (In re D.S. (2014) 230 Cal.App.4th 1238, 1244.)
Preliminarily, we note that Kelsey S. concerned biological fathers. The Second District extended Kelsey S. protections to certain nonbiological "fathers" in Jerry P. We question the soundness of that extension. And even if Kelsey S. protections are appropriate for some nonbiological "fathers," Samuel has not shown he is such a father. According to S.C.'s mother, Samuel entered the picture when she was six and one-half or seven months pregnant with S.C. Samuel bought some "items" in preparation of S.C.'s birth and claimed he planned to live together with S.C. following her birth. These facts simply do not rise to a level warranting constitutional protection. Meeting a pregnant woman a couple months before she gives birth, living with her, buying "items" of unknown value in preparation of the birth, and saying you will raise the child is not enough to trigger a constitutional entitlement to presumed father status.
DISPOSITION
The order of dismissal is conditionally reversed. The dependency court shall determine whether setting aside Samuel's voluntary declaration of paternity is in the best interests of S.C., considering the factors listed in section 7575, subdivisions (b)(1)(A) through (H).
If the court determines that setting aside Samuel's voluntary declaration of paternity is in the best interests of S.C., it shall state on the record the basis for its decision (§ 7575, subd. (b)(2)) and reinstate its dismissal of Samuel from the action. If the court determines that setting aside Samuel's voluntary declaration of paternity is not in the best interests of S.C., the matter shall proceed with Samuel as a party.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
KANE, J.