Opinion
B317870
04-04-2023
In re B.G., a Person Coming Under the Juvenile Court Law. v. JOSEPH C., Defendant and Appellant; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, B.G., Intervener and Respondent.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Marissa Coffey, under appointment by the Court of Appeal, for Intervener and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP04234F, D. Brett Bianco, Judge. Affirmed.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Marissa Coffey, under appointment by the Court of Appeal, for Intervener and Respondent.
EGERTON, J.
In August 2020, the Los Angeles County Department of Children and Family Services (the Department) filed a dependency petition on behalf of B.G. and his six siblings, alleging mother engaged in domestic violence with the youngest sibling's father. At the initial hearing following the children's detention, the juvenile court found Bobby G., with whom mother shared joint custody of the six older children, to be B.G.'s presumed father.
A month later, Joseph C. filed a request to be declared B.G.'s presumed father. He asserted he was the child's biological father and he had held B.G. out as his son. In October 2020, the juvenile court denied the request, finding it would not be detrimental to B.G. to recognize only two parents. (See Fam. Code, § 7612, subd. (c).) Joseph C. appealed the order, and we affirmed, concluding substantial evidence supported the court's finding. (In re B.G. (Sept. 24, 2021, B308221) [nonpub. opn.].)
Statutory references are to the Family Code, unless otherwise designated.
After remand, Joseph C. filed a petition under Welfare and Institutions Code section 388 seeking modification of the October 2020 order denying his request for presumed father status. He argued new evidence showing he had "continued to build on [his] relationship" with B.G. demonstrated it would be in B.G.'s best interests to recognize Joseph C. as a presumed father.
The juvenile court denied the petition for modification. The court reaffirmed its finding that recognizing only two parents would not be detrimental to B.G. (§ 7612, subd. (c)) and found Bobby G.'s presumption of paternity rested on weightier considerations of policy and logic (id., subd. (b)). Finding the circumstances that necessitated the dependency proceeding had been ameliorated, the court terminated jurisdiction with an exit order awarding mother and Bobby G. joint legal and physical custody and granting Joseph C. "parenting time" every other week.
Joseph C. appeals the order denying his petition for modification. The record supports the juvenile court's exercise of discretion. We affirm.
FACTS AND PROCEDURAL HISTORY
1. The Previous Appeal
B.G. (born February 2016) is the second youngest of mother's seven children.
In August 2020, the Department filed a dependency petition on behalf of the children, alleging mother and the father of her youngest child engaged in violent altercations.
Mother filed responses to a parentage questionnaire stating she believed Bobby G. to be B.G.'s father. She said she and Bobby G. were married at the time of B.G.'s conception and birth but were not living together, and Bobby G. openly held himself out as B.G.'s father. Although a paternity test was not performed, mother claimed the family law court had previously declared Bobby G. to be B.G.'s father.
According to mother's responses, she and Bobby G. separated in 2018. Records from mother's earlier dependency case showed that in November 2017, the juvenile court adjudicated her six oldest children dependents based on findings that she engaged in violent altercations with her former male companion, appellant Joseph C. In July 2018, the juvenile court terminated dependency jurisdiction and awarded Bobby G. sole legal and physical custody of the children, including B.G. In February 2019, the family law court entered a stipulated order between mother and Bobby G. for joint legal and physical custody of the children.
In August 2020, the juvenile court found Bobby G. to be the presumed father of B.G. and B.G.'s five older siblings. The court released B.G. and the five older siblings to Bobby G. and mother, in accordance with the existing custody order.
In September 2020, Joseph C. filed a statement regarding parentage, stating he believed himself to be B.G.'s father. He asserted B.G. had lived with him from the child's birth in February 2016 until 2017; he had been paying child support for B.G. since before the child was a year old; there was a 2016 child support order adjudicating him to be B.G.'s father; and he completed a DNA test at the children's court that confirmed B.G. as his biological child. He also said he had an ongoing case in the superior court to obtain shared custody and visitation rights and Bobby G. was agreeable to such an arrangement. Joseph C. claimed he had held B.G. out to the "whole world" as his child, but mother had denied him the opportunity to participate in the child's life.
Joseph C. made his first appearance in the case to request presumed father status. The court decided to "defer a parentage finding" for Joseph C., but "tentative[ly]" indicated it was "inclined to say that he would be a presumed father as well." It directed the Department to gather information regarding Joseph C.'s family law case.
In October 2020, the Department filed a report detailing its investigation and interviews with Joseph C. and mother regarding Joseph C.'s parentage claim. Joseph C. again claimed he had completed a DNA test that confirmed he was B.G.'s biological father, but he said he could not locate the results. He said he saw B.G. often until he and mother separated two years earlier, and he had not seen B.G. for over a year. The Department reported it had accessed Bobby G.'s child support records, which showed B.G. was the only child for whom Bobby G. was not ordered to pay child support.
Mother reported B.G. considers Bobby G. to be his father; Bobby G. holds B.G. out as his son; and B.G. and her other children stay with Bobby G. every week under their shared custody order. Contrary to Joseph C.'s claim, mother said he refused to take a DNA test and he never came to see B.G. She said she filed for child support because Joseph C. had told his family and her family that B.G. was not his son. She also said the court ordered Joseph C. to pay child support after he refused to take a DNA test.
The court denied Joseph C.'s request for presumed father status. The court explained it had already found Bobby G. to be the presumed father; Bobby G. had "assumed a parental role and meets all the criteria for a presumed father"; and, in order to also find Joseph C. a presumed father, "the court would have to find that it would be detrimental to the minor not to recognize the second father," which was "simply not the case." The court ruled Joseph C. would "remain [an] alleged" father. Joseph C. appealed the order.
On September 24, 2021, we affirmed the order denying Joseph C.'s request for presumed father status. In doing so, we emphasized that "the only evidence" regarding an "existing parent-child relationship" was "mother's assertion that B.G., like the siblings with whom he shared a household, thought of Bobby G. as his only father." (In re B.G., supra, B308221.) Thus, we concluded "the evidence plainly supported the juvenile court's implicit determination that declining to recognize Joseph C. as a third parent would not result in 'the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and . . . psychological needs for care and affection . . . for a substantial period of time.'" (Ibid., quoting § 7612, subd. (c).)
2. Dependency Proceedings During Appeal and After Remand
In April 2021, the Department reported Joseph C. was visiting B.G. on a weekly basis and the visits went well. B.G. was happy to see Joseph C. and, on a few occasions, he had asked if he could go to Joseph C.'s house. Joseph C. appeared patient with B.G. and reportedly "seemed . . . interested in meeting the child's bonding needs." Joseph C. said he wanted "joint custody with mother, and that he would do whatever it takes to make this happen."
Under his case plan, Joseph C. was required to complete a domestic violence program for perpetrators. The Department reported he had enrolled in a program but had not attended any classes "for reasons that were not a result of his negligence." On August 2, 2021, Joseph C. filed a walk-on request for an order directing mother to comply with the court's visitation order. In a supporting declaration, Joseph C. alleged mother had refused to allow visits or any communication with B.G. since June 11, 2021. The court ordered the Department to meet with the parents to establish a "revised visitation schedule."
In October 2021, the Department reported visitation with Joseph C. had resumed. B.G. denied that Joseph C. ever made him feel sad and he said he enjoyed their visits together. Joseph C. had attended only three domestic violence classes and did not complete the program.
Bobby G. "opted not to be involved" with the case as he "was not the reason for the [D]epartment's intervention." The children had "appropriate interaction" with Bobby G. and "no issues were ever reported." The Department recommended the court terminate jurisdiction and grant mother sole physical and legal custody of B.G. with unmonitored visits for Joseph C.
On December 3, 2021, this court issued the remittitur remanding the matter to the juvenile court.
On December 10, 2021, Joseph C. filed a petition for modification under Welfare and Institutions Code section 388. Referring to the court's October 2020 order denying his request for presumed father status, Joseph C. requested a new order declaring him to be a presumed father of B.G.
Regarding changed circumstances, Joseph C. asserted, "I have continued to build on my relationship with [B.G.]." In a supporting declaration, he said he maintained regular six-hour visits with B.G. once a week and B.G. now called him" 'Dad.'" He had introduced B.G. to his daughters and the children enjoyed playing together. Joseph C. claimed he gave cash to mother, purchased clothes and toys for B.G., and provided other financial support.
As for why the requested order would be in B.G.'s best interests, Joseph C. asserted: "[B.G.] is my son, I would like an opportunity to be a constant figure in his life. His mother previously hindered my relationship with him. [B.G.] and I have consistently been spending time together. He enjoys being around me and my other children. I would like an opportunity to be able to continue in building my relationship with him for the rest of both our lives."
The juvenile court scheduled a hearing on the petition for modification, finding, as a preliminary matter, that B.G.'s best interests may be promoted by the request.
Mother opposed the petition for modification. She asserted that for B.G.'s "entire life" the boy regarded Bobby G. as his father, as did B.G.'s six other siblings. Bobby G., in turn, had "never faltered in providing all these children with stability, fulfilling the children's physical and psychological needs." She emphasized that Joseph C. had failed to complete a domestic violence program as required under the terms of his case plan and she disputed Joseph C.'s claim that he had an existing parental relationship with B.G.
In advance of the hearing, the Department reported that, although Joseph C. was authorized to have overnight visits with B.G., those visits had yet to occur because Joseph C. did not assemble a bed intended for the child.
On January 10, 2022, the juvenile court held a hearing on Joseph C.'s petition for modification. Joseph C.'s counsel largely restated the evidence offered in his client's declaration, emphasizing that B.G. calls Joseph C. "dad" and that they visit at least once a week.
Mother and the minor's counsel joined in opposing the petition. While mother focused on Joseph C.'s failure to complete a domestic violence program, minor's counsel argued there was insufficient evidence that Joseph C. and B.G. had "fully developed a parent-child relationship." Minor's counsel emphasized that B.G. still sees Bobby G. "as his main [father] figure" and argued it would not be detrimental to the boy to decline to recognize Joseph C. as a presumed father. She acknowledged that a parent-child relationship might develop with "more time" and noted that Joseph C. would "have an opportunity to later address this in family court should he choose to."
The juvenile court denied Joseph C.'s petition, crediting mother's assertion that B.G. sees Bobby G. as his father and reaffirming its earlier finding that recognizing only two parents would not be detrimental to the child. For largely the same reason, the court found Bobby G.'s presumption of paternity rested on weightier considerations of policy and logic.
Finding the circumstances justifying the dependency proceeding no longer existed, the juvenile court terminated jurisdiction with an exit order awarding mother and Bobby G. joint legal and physical custody. The order granted Joseph C. "parenting time" every other week from Friday at 2:00 p.m. to Saturday at 12:00 p.m.
DISCUSSION
Joseph C. contends the juvenile court abused its discretion by denying his petition for modification. He contends his new evidence proved he had an existing father-son relationship with B.G. and this compelled a finding that the child's best interests would be served by declaring him B.G.'s presumed father.
Welfare and Institutions Code section 388 provides in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (Welf. &Inst. Code, § 388, subd. (a)(1).)
"A dependency court order may be changed or modified under Welfare and Institutions Code section 388 if a petitioning parent establishes one of the statutory grounds, changed circumstance or new evidence, for the modification, and also proves the proposed change would promote the best interests of the child. [Citations.] The parent requesting the change of order has the burden of establishing that the change is justified." (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703 (Michael B.).) "The petition 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." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)"' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." '" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).)
In dependency proceedings, fathers are divided into three categories:" 'alleged,'" " 'biological,'" and" 'presumed.'" (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595-596.) "A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an 'alleged' father." (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) "A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status." (Ibid.) "Presumed father status ranks highest." (In re Jerry P. (2002) 95 Cal.App.4th 793, 801; Zacharia D., at pp. 448-449.) "[O]nly a presumed . . . father is a 'parent' entitled to receive reunification services under [Welfare and Institutions Code] section 361.5," and custody of the child under Welfare and Institutions Code section 361.2. (Zacharia D., at p. 451; Jerry P., at p. 801.)
Section 7611 defines the circumstances in which a man will be deemed a presumed father, including, as pertinent here: if the man is or has been married to the child's natural mother and the child is born during (or soon after) the marriage (§ 7611, subd. (a)), or the man "receives the child into [his] home and openly holds out the child as [his] natural child" (id., subd. (d)). "The statutory purpose [of section 7611] is to distinguish between those [parents] who have entered into some familial relationship with the mother and child and those who have not." (In re Sabrina H. (1990) 217 Cal.App.3d 702, 708; In re T.R. (2005) 132 Cal.App.4th 1202, 1209.)
In petitioning for modification of the order denying his request for presumed father status, Joseph C. relied principally upon section 7612, subdivision (c). That statute authorizes the juvenile court "[i]n an appropriate action" to "find that more than two persons with a claim to parentage . . . are parents if the court finds that recognizing only two parents would be detrimental to the child." (§ 7612, subd. (c).) In determining detriment, the statute directs the court to "consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time." (Ibid.; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1088-1089 (Donovan L.))
As the court explained in Donovan L., the legislative history of section 7612, subdivision (c) shows the Legislature intended the subdivision "to be narrow in scope and to apply only in 'rare cases' in which a child 'truly has more than two parents' who are parents 'in every way.'" (Donovan L., supra, 244 Cal.App.4th at p. 1090, quoting Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1 (S.B. No. 274).) "In those rare cases, the Legislature sought to protect the child from the 'devastating psychological and emotional impact' that would result from '[s]eparating [the] child from a parent.'" (Donovan L., at pp. 1090-1091, quoting S.B. No. 274, at § 1.) Thus, the Donovan L. court interpreted the phrase "an appropriate action" (§ 7612, subd. (c)) to mean "one in which there is an existing parent-child relationship between the child and the putative third parent, such that 'recognizing only two parents would be detrimental to the child.'" (Donovan L., at pp. 1090-1091.) In Joseph C.'s previous appeal, we adopted this statutory construction of section 7612, subdivision (c). (In re B.G., supra, B308221.)
Joseph C. contends the new evidence he presented with his petition for modification "established a claim to third-parent status in that he and [B.G.] have an existing parent-child relationship to preserve." But the question on appeal is not whether the evidence was sufficient to establish Joseph C.'s claim. Rather, we must decide whether the record demonstrates the juvenile court"' "exceeded the bounds of reason" '" when it declined to recognize Joseph C. as a third parent. (Stephanie M., supra, 7 Cal.4th at pp. 318-319; see § 7612, subd. (c).) Even if we assume the juvenile court credited Joseph C.'s evidence, it at most showed he had an additional year of positive visits with B.G., during which their bond seemingly grew; B.G. met additional members of Joseph C.'s family; the child at times referred to Joseph C. as "dad"; and on a few occasions B.G. asked to visit Joseph C.'s house. Other evidence, however, suggested the bond had not developed to the point that B.G. would suffer detriment from declining to recognize Joseph C. as a third parent. On this record, we cannot find an abuse of discretion occurred. (See Stephanie M., at pp. 318-319; I.W., supra, 180 Cal.App.4th at p. 1528; fn. 2, ante.)
Congruently, because Joseph C. had the burden of proof on his petition for modification (Michael B., supra, 8 Cal.App.4th at p. 1703), the question for the reviewing court is "whether the evidence compels a finding in favor of [Joseph C.] as a matter of law" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.)). Specifically, the question is "whether [Joseph C.'s] evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding'" that recognizing only two parents would be detrimental to B.G. (I.W., at p. 1528; see also Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the testimony of a witness, even if that testimony is uncontradicted].)
Critically, in assessing whether recognizing only two parents would be detrimental to B.G., section 7612 directs the juvenile court to consider "the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time." (§ 7612, subd. (c), italics added.) As the Donovan L. court explained, the Legislature "borrowed the 'detriment to the child' standard from section 3041, which governs custody awards to a nonparent over the objection of a parent." (Donovan L., supra, 244 Cal.App.4th at p. 1089, citing Sen. Com. on Judiciary, Rep. on Sen. Bill No. 274 (2013-2014 Reg. Sess.) as amended Apr. 1, 2013, p. 6.) That standard requires a court to consider" 'the prospect that a successful, established custodial arrangement would be disrupted' [citation, italics added] or [whether] the harm in 'removing a child from what has been a stable, continuous, and successful placement is detrimental to the child' [citation, italics added]." (Donovan L., at p. 1089, quoting Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1123 and Guardianship of L.V. (2006) 136 Cal.App.4th 481, 491.) In view of the detriment standard and the directive to consider whether the prospective third parent maintained a parental role and "stable placement" for "a substantial period of time" (§ 7612, subd. (c)), the juvenile court necessarily and reasonably considered Joseph C.'s new evidence in context with the entire history of his interactions with B.G.
The record shows mother was married to Bobby G. when B.G. was born and Bobby G. held B.G. out as his child since birth. Although Joseph C. claimed B.G. lived with him at times during the child's infancy, a sustained dependency petition showed that just after B.G.'s first birthday, Joseph C. engaged in multiple violent altercations with mother in B.G.'s presence. As of July 2018, when the juvenile court closed that case, Joseph C. had had no visits with B.G. For the next two years, Joseph C. admitted he was largely absent from B.G.'s life, until the Department notified him of the current dependency proceeding in October 2020. Mother likewise said Joseph C. failed to visit B.G. during this period, and, contrary to Joseph C.'s assertion, she reported Joseph C. told his family that B.G. was not his child.
In breach of his case plan in the current dependency proceeding, Joseph C. attended only three classes and never completed a domestic violence program.
Apart from the first year of B.G.'s life, it is undisputed that Joseph C. has not had custody of the child and B.G. has not had a "stable placement" with Joseph C., let alone one that has persisted for a "substantial period of time." (§ 7612, subd. (c).) On the contrary, during the time when Joseph C. maintained his weekly visits with B.G., the record shows the child lived exclusively with mother and Bobby G. Mother reported that B.G. regards Bobby G. as his father, as the child had for his "entire life," because Bobby G. had consistently provided for B.G.'s and his six siblings' physical and psychological needs. She said Bobby G. and B.G. had maintained "strong bonds," and B.G. had a "stable environment" living with Bobby G. and his siblings. This evidence, coupled with the entire history of Joseph C.'s relationship with B.G., supported the juvenile court's finding that it would not be detrimental to B.G. to recognize only mother and Bobby G. as his parents.
To be clear, in concluding the juvenile court reasonably exercised its discretion on this record, we do not hold that a prospective third parent must have had physical custody of a child to establish a sufficient parent-child relationship under section 7612, subdivision (c). But given that the statute directs the juvenile court to consider whether the child has been in a "stable placement" with the prospective third parent "for a substantial period of time" (§ 7612, subd. (c)), we plainly cannot say the juvenile court abused its discretion by declining to find detriment when B.G. has never had a stable placement with Joseph C. for any period of time during his seven years of life.
For largely the same reason, the juvenile court did not abuse its discretion in determining Bobby G.'s presumption of paternity was "founded on the weightier considerations of policy and logic." (§ 7612, subd. (b).) The undisputed evidence proves that, for most of B.G.'s life, Bobby G. has been the child's custodial parent. Indeed, for a time, Bobby G. was the child's sole custodial parent under a custody order stemming from a dependency case implicating Joseph C. in violent attacks on mother. Even after that custody order was modified to grant mother shared custody, B.G. continued to live exclusively with mother or Bobby G., while Joseph C. has had only once-weekly visits with the child. Consistent with this evidence and with mother's statements in opposition to the petition for modification, the juvenile court expressly found that B.G. "sees" Bobby G. as his father. The court did not abuse its discretion in declining to modify its presumed father order.
Section 7612, subdivision (b) provides in relevant part: "If two or more presumptions arise under Section 7611 that conflict with each other, . . . the presumption that on the facts is founded on the weightier considerations of policy and logic controls."
It is critically important that juvenile courts determine the identity of presumed parents in dependency proceedings. "[I]nasmuch as a dependency action could eventually result in the termination of parental rights, a court needs first to know the identities of the parents . . . so that they may receive notice of the hearing; be provided counsel, if necessary; and be accorded a meaningful opportunity to be heard." (In re Jesusa V. (2004) 32 Cal.4th 588, 620; see Welf. &Inst. Code, § 316.2.) But the juvenile court also "must not become a battleground by which family law war is waged by other means." (In re John W. (1996) 41 Cal.App.4th 961, 975 (John W.).) "It is common knowledge that the resources of local government social service agencies are stretched thin; in the juvenile dependency context those resources are manifestly intended to be directed at neglected and genuinely abused children." (Ibid.)
The family court is the appropriate forum for Joseph C. to pursue whatever relief he now seeks. This dependency proceeding began in August 2020 based on a domestic violence altercation between mother and her youngest child's father. Bobby G. is a nonoffending parent. B.G. was never removed from parental custody. Joseph C. consistently received notice of the hearings. Through two appeals and in all juvenile court proceedings Joseph C. has had appointed counsel. No parental rights were terminated. The court's exit order maintained the existing joint custody arrangement between mother and Bobby G., and the order granted Joseph C. significant parenting time with the child. The family court has continuing jurisdiction to modify the parentage order upon an appropriate showing. (§ 7642.) This case no longer belongs in the juvenile court.(See John W., supra, 41 Cal.App.4th at p. 976 ["If indeed there is ever a place for it, the place for a custody battle is in the family law courts. There the battle will not consume public resources which are better directed to children who typically do not have the luxury of two functional parents fighting for custody, and where the taxpayers do not have to pick up the tab for lawyers and psychologists." (Fn. omitted.)].)
Joseph C.'s request for this court to take additional evidence on appeal is denied. (See In re Zeth S. (2003) 31 Cal.4th 396, 405, 413-414 [absent "exceptional circumstances" reviewing courts must not receive additional evidence or make findings of fact on appeal].) This evidence and whatever relevance Joseph C. believes it has to the parentage determination or custody issues should be presented to the family court.
DISPOSITION
The order is affirmed.
We concur: LAVIN, Acting P.J. NGUYEN (KIM), J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.