Opinion
B228339
10-05-2011
In re C.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TOMAS C., Defendant and Appellant.
Jesse F. Rodriguez, under Appointment by the Court of Appeal, for Tomas C. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK56149)
APPEAL from an order of the Los Angeles Superior Court. Marilyn Mordetsky, Referee. Reversed.
Jesse F. Rodriguez, under Appointment by the Court of Appeal, for Tomas C.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel for Respondent.
Tomas C. challenges the juvenile court order denying him presumed father status as to R.I. and A.I., the two youngest children of mother Jamie I., who lived with Tomas C., his wife D.C., and his children. He argues the juvenile court's failure to follow established procedures for determining whether an alleged father is entitled to presumed father status was prejudicial, requiring reversal for new proceedings as to his status. Respondent concedes the procedural errors, but contends they were harmless. We find the court's failure to comply with the procedure for establishing presumed father status prejudicial on this record and reverse.
FACTUAL AND PROCEDURAL SUMMARY
In June 2010, the Department of Children and Family Services (the Department) received an immediate response referral regarding mother's children alleging physical, general, and sexual abuse against the children; that mother left the children for extended periods; that she did not provide sufficient care for the children; and that she abused drugs. The children were detained and placed in protective custody. The family had a history of prior referrals to the Department.
According to Tomas C. (Tomas), mother and her two eldest children (C.A. and G.V.) moved in with him, his wife, and their six children, approximately 9 years earlier. During that time, mother's two younger children were born; R.I. (in 2003) and A.I. (in 2004). Mother and all four of her children had been living in Tomas's home when the immediate response referral was made to the Department on June 1, 2010, but had been picked up for the weekend by their maternal grandmother. A social worker interviewed the children, who reported that their mother had been gone for some time. The grandmother suspected, in light of her erratic behavior, that mother was using drugs.
At the detention hearing, based on mother's statements, the court found four men other than Tomas to be the alleged fathers of mother's children. The men mother identified as the fathers of R.I. and A.I. were not married to her at the time of the births, were not on their birth certificates, and had never held themselves out to be the father of the respective children or welcomed the children into their homes. Tomas did not appear at the hearing. The children were detained in shelter care and a supplemental report was ordered.
A report prepared for the jurisdiction and disposition hearing included Tomas's statements to the social worker that he and mother had an ongoing sexual relationship for years. His wife, because of mental illness, was unaware of this relationship. Investigation of the reports of physical and sexual abuse was inconclusive. Mother's extended absences from Tomas's home had adversely affected the children's school attendance. Mother tested positive for drugs at the birth of her two younger children and current behaviors suggested ongoing substance abuse issues. R.I. and A.I. said they had witnessed Tomas arguing with their mother and physically abusing her.
Tomas was present at the July 13, 2010 hearing. Counsel for mother and the children expressed doubt about Tomas's role since mother denied that he had fathered any of the children. In response to inquiries by the court, Tomas said that all the children had lived with him. Counsel was appointed for Tomas. His attorney said the children had lived with his client since 2002, that Tomas believes he is the father of R.I. and A.I., and that he sought presumed father status. DNA testing of Tomas was ordered. A supplemental report regarding paternity, including the results of the DNA testing, was ordered.
The DNA test established that Tomas is not the biological father of R.I. or A.I. Counsel for Tomas said his client conceded he is not the biological father, that he is not on their birth certificates, and that the children know he is not their biological father. But he contended that Tomas had "acted like any father possibly could." Counsel for the Department said it would dispute presumed father status for Tomas.
On October 7, 2010, the court took up the question of Tomas's paternity status. Counsel for Tomas said: "I'd like to call the father to the stand so that he may tell the court what he has done to become a presumed father under [Fam. Code, §] 7611(d)." The court asked whether Tomas would testify to facts different from the contents of the Department's report on paternity submitted that day. Counsel for Tomas made an offer of proof that Tomas would testify that he qualifies as a presumed father since he had taken a parental role in every respect. Counsel also argued that presumed father status should not be rebutted because allegations of physical abuse between Tomas and mother had not been sustained and no risk to the children had been established.
Counsel for the Department argued the allegations of physical abuse by Tomas and said the minors do not want to have a relationship with Tomas. He contended that Tomas had not shown that he had acted in a paternal role, just that he had a sexual relationship with mother. He also noted that Tomas had not appeared in the prior dependency proceeding involving mother and the minors. Counsel for the children took the position that Tomas did not qualify for presumed father status. Counsel for mother confirmed the sexual relationship between her client and Tomas, and said this relationship was what brought mother and her children into Tomas's household. She disputed the Department's version of Tomas's role and said her client had failed to care for these children "leaving poor Mr. [C.] to do everything."
Tomas's attorney told the court "I don't think we can really know what Mr. [C.] has been doing with these children for the last almost nine years unless we hear from him. Because I don't think it's reflected accurately in the reports." The court denied presumed father status without letting Tomas testify, saying it did not believe that the circumstances rose to a parental-type relationship. The court concluded that Tomas had no standing in these proceedings and relieved his counsel.
Tomas filed a timely notice of appeal from the order denying him presumed father status.
DISCUSSION
Four categories of fathers are recognized in dependency proceedings "'natural [or biological], presumed, alleged, and de facto. [Citation.]" (In re J.O. (2009) 178 Cal.App.4th 139, 146.) "An alleged father is a man who may be the father, but has not yet established himself as either a biological father or a presumed father. (Citation.)"(Id. at pp. 146-147.) As we explained in In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120 (Kobe A.), a father's status is significant because it determines the extent to which a father may participate in the proceeding and the rights to which he is entitled. "'Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan. [Citations.]' (In re T.R. [2005] 132 Cal.App.4th 1202, 1209.)" (Ibid.)In contrast, the right to due process provides an alleged father only notice and an opportunity to appear to assert a position in an attempt to change his paternity status as governed by Welfare and Institutions Code section 316.2. (Ibid.) In dependency cases, the Family Code standards for paternity are adopted. (In re J.O., supra, 178 Cal.App.4th at p. 147.) The relevant provision here is Family Code section 7611, subdivision (d), which "provides that a man is presumed to be the natural father of a child or children if '[h]e receives the child into his home and openly holds out the child as his natural child.'" (Ibid.)
Here, Tomas does not claim de facto father status, which refers to "someone such as a stepparent who has, on a day-to-day basis, assumed the role of a parent for a substantial period of time." (In re A.A. (2003) 114 Cal.App.4th 771, 779.)
Tomas argues the juvenile court did not follow the procedure mandated by Welfare and Institutions Code section 316.2, subdivision (b) (statutory references are to this code unless otherwise indicated), which requires the court to provide notice to an alleged father that the child is the subject of proceedings under section 300 and that those proceedings could result in the termination of parental rights and eventual adoption of the child. The statute expressly requires that Judicial Council form Paternity-Waiver of Rights (JV-505) be included with the notice. (Kobe A., supra, 146 Cal.App.4th at pp. 1120-1121.) This statute is implemented by California Rules of Court, rule 5.635 (rule 5.635). Subdivision (e) of the rule applies here because there was no prior determination of the parentage of R.I. or A.I. That rule requires that form JV-505 be available in the courtroom and be completed and submitted by the alleged father and his counsel. Rule 5.635(e)(3) provides: "The court may make its determination of parentage or nonparentage based on the testimony, declarations, or statements of the alleged parents. . . ."
Judicial Council form JV-505 informs an alleged father he can have a trial on the issue of parentage and counsel if he cannot afford one. (In re Marcos G. (2010) 182 Cal.App.4th 369, 384; In re Kobe A., supra, 146 Cal.App.4th 1122 [JV-505 form states alleged father has right to court trial to determine paternity, a right to representation, a right to cross-examine witnesses, and a right to present evidence on his behalf].)
Tomas argues the juvenile court did not make the inquiries regarding paternity mandated by section 316.2 and rule 5.635(a) and (b); failed to expressly find he was an alleged father of R.I. and A.I.; failed to provide form JV-505; and denied him an opportunity to present evidence (his testimony) to demonstrate that he satisfied the test for presumed father status.
Section 316.2, subdivision (a)(1)-(7) requires the court to inquire as to whether there is an existing judgment of paternity; whether mother was married (or believed herself to be married) at conception or any time thereafter; whether mother was cohabiting with a man at time of conception or birth; whether mother had received support payments or promises of support with respect to the child or her pregnancy; whether any man had formally or informally acknowledged or declared his possible paternity of the child; whether paternity tests had been administered and the results if any; and whether any man otherwise qualifies as a presumed father under Family Code section 7611 or any other provision of that code.
Rule 5.635, in subsection (b)(8), in essence repeats the inquiries set out in section 316.2 and adds the inquiry whether the child has been raised jointly with another adult or in any other coparenting arrangement. Rule 5.635 applies where the issue of parentage is addressed by the court in any proceeding. The court must ask the parent or person alleging parentage whether any parentage finding has been made or whether a voluntary declaration has been filed under the Family Code. The court also must direct the court clerk to prepare and transmit the Parentage InquiryJuvenile form JV 500 to the local child support agency to determine whether parentage has been established in a prior proceeding.
The Department acknowledges that "the juvenile court did not entirely follow relevant procedures . . . ." It concedes that the juvenile court did not conduct the appropriate paternity inquiry and did not provide the JV-505 form. But it contends the errors are harmless because Tomas cannot establish prejudice. The Department asserts that the questions in the relevant paternity inquiry were answered through information provided at trial through its investigation. It also argues that failure to provide the JV-505 form was harmless because Tomas "enjoyed and exercised all of the rights explained in the form." The Department suggests that we may imply a finding that Tomas had alleged father status from the record and that the error in failing to make an express finding was harmless because Tomas received all the rights of an alleged father. Finally, the Department argues that the denial of an opportunity for Tomas to testify does not require reversal because he had no absolute right to testify and that the court acted within its discretion in basing its paternity ruling on other evidence. The Department also contends that the offer of proof by counsel for Tomas was legally inadequate.
We discussed the appropriate standard of review where the dependency court does not follow the procedure required to establish paternity by failing to serve the father with form JV-505 in Kobe A., supra, 146 Cal.App.4th 1113: "'We typically apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se. This practice derives from article VI, section 13 of the California Constitution, which provides: "No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."' (In re Jesusa V. (2004) 32 Cal.4th 588, 624.) Applying that standard, we conclude the error in this case was harmless." (Id. at p. 1122.) In that case, we concluded the error was harmless under any standard because the father would not have been able to meet the statutory elements to be declared a presumed father, his criminal history gave the court little discretion to provide reunification services, and there was no realistic possibility that reunification was in the child's best interests since there was no relationship between father and child. (Id. at pp. 1123-1124.)
Tomas argues the procedural errors were prejudicial because the evidence and representations of his counsel support a conclusion that he may qualify as the presumed father of R.I. and A.I. He contends the court's error in denying him the opportunity to present additional evidence was prejudicial in light of the disputed facts and minimal information available to the court.
The Department argues that the outcome would have remained unchanged even if the court had made the inquiry of mother or Tomas necessary under section 316.2. It contends that by the October 7, 2010 hearing, the juvenile court had the answers to all the paternity inquiries required by statute and court rule. The Department points out that there was no prior paternity judgment or family law order; Tomas was married to someone other than mother; and mother was cohabiting with Tomas (the Department characterizes that arrangement as for employment purposes); mother said she had received no child support; DNA tests ruled out Tomas as father; and there was no indication that any man otherwise qualified as a presumed father. It also contends Tomas, with the aid of appointed counsel, received notice of all the rights and options to which he was entitled as an alleged father and therefore the failure to provide the form JV-505 was harmless.
We find harmless the juvenile court's failure to expressly declare that Tomas had alleged father status. The appointment of counsel to claim parentage is a right attached to that status. From the court's appointment of counsel, we may infer the alleged father finding. (In re Joshua R. (2002) 104 Cal.App.4th 1020, 1026 [appellate court concluded juvenile court implicitly found reunification services for putative father would not benefit children when it denied request for genetic tests to establish paternity].)
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We disagree with the Department's characterization of the record in arguing that the court had the information necessary to find that Tomas could not qualify for presumed father status. The record establishes that mother was cohabiting with Tomas when R.I. and A.I. were born and conceived (§ 316.2, subd. (a)(3); the children and Tomas's children both told the social worker that it was Tomas who provided food for R.I. and A.I. (§ 316.2, subd. (a)(4)); and there was a possibility that Tomas would qualify as a presumed father under Family Code section 7611 subdivision (d) because he received the children into his home and openly held them out as his own natural children. Since Tomas was not given an opportunity to testify about his unconventional living arrangement with mother and her children, the court was not in a position to make a ruling as to whether Tomas could demonstrate that he qualified for presumed father status under Family Code section 7611. Tomas's attorney argued that his client would testify that he had taken a parental role "in every respect" for the minors and that he had been involved in their rearing at every stage of their lives with the exception of the eldest child, C.A., who was two or three when mother moved in with Tomas.
Counsel for Tomas disputed statements in the social worker's reports about the nature of the relationship between Tomas and mother and her children. In his offer of proof he said his client would qualify as a presumed father. He explained: "I don't know how much the court would need to hear. I'm not sure what's in the report, mostly bad stuff. But the stuff he would be testifying to would be all good stuff." However inartful, this statement was sufficient to put the court on notice that Tomas planned to provide information that contradicted, or at least would supplement, the information in the social worker's reports.
It is significant that counsel for mother also challenged the Department's characterization of the relationship between Tomas and mother as an employment relation and the implication that Tomas had sexually harassed mother. Mother's attorney argued: "[T]he fact is that my client entered into a relationship with Mr. [C.] years ago. That's how she got into the household, Mr. [C.] having been quite obviously estranged from a paranoid schizophrenic wife who is so removed from reality as not to have been present in the relationship. It was subsequent to that that my client was employed by Mr. [C.] to care for the children and subsequent to the initial interaction that she and he became no longer intimate people. [¶] That being said, it has absolutely nothing to do with what Mr. [C.] has done for these children and the fact that he has gone to the school for their school functions. [¶] The initial detention packet and the PRC packet is pounded [sic: compounded?] with how my client [mother] failed to care for these children leaving poor Mr. [C.] to do everything. And now the Department wants to turn it around and say he was an employer of a woman who was sexually harassed in the home. That's just disingenuous."
Counsel for mother made a further offer of proof—her client would testify that the children had told her that they wanted to see Tomas. Counsel concluded: "But the situation is not as [counsel for the Department] paints it, nor as could be inferred in this seven-page report, to even be able to call it a report. It's a misstatement of fact. And it's very mislead[ing]. And, frankly, it's offensive." Counsel for Tomas interjected: "I don't think we can really know what Mr. [C.] has been doing with these children for the last almost nine years unless we hear from him. Because I don't think it's reflected accurately in the reports."
The Department argues that an evidentiary hearing on Tomas's status was not required because he had already given favorable information about his relationship with the children to the social worker which was included in the reports. It contends that this information "was sufficient for the juvenile court to make a balanced and well-informed determination." The Department asserts that, in any event, there is substantial evidence that Tomas did not qualify as a presumed father under Family Code section 7611, subdivision (d). While the Department acknowledges that the first prong (receiving the children into his home) is implicated by statements that the children were living in Tomas's home, it repeats the assertion that the relationship was merely one of employment. The Department argues: "In the present case [Tomas C.] permitted the children in his home out of convenience and self-interest, namely as part of mother's terms of employment." As we have discussed, counsel for both mother and Tomas strenuously challenged this characterization of the relationship and said their clients would testify that the relationship was not merely between employer and employee. We note that in In re Spencer W. (1996) 48 Cal.App.4th 1647, a case cited by the Department, the court held a full hearing before denying presumed father status.
The second prong of Family Code section 7611, subdivision (b) is that the man openly holds out the child as his natural child. The Department argues Tomas cannot satisfy this prong because there is insufficient evidence from which to make such a finding. As Tomas points out, there is no clear indication that the social worker asked him questions that would have been relevant to this inquiry. The court did not have an opportunity to make this inquiry since Tomas was not allowed to testify.
In Kobe A., we distinguished In re Paul H. (2003) 111 Cal.App.4th 753 (Paul H.), in which the juvenile court had minimal information before it regarding the alleged father's circumstances and background. In that case, the alleged father was not served with form JV-505, the social worker did not interview him, and no information was provided to the juvenile court concerning his viability as a custodian for the minor. Based on this record, the Paul H. court found the procedural error prejudicial because "based on this dearth of information" it could not assume that had the alleged father established paternity and been appointed counsel, he would not have received reunification services. (Id. at pp. 761-762.)
We conclude that the juvenile court's failure to comply with the procedure set out in the statute and court rules for establishing presumed father status was prejudicial. Contrary to the Department's argument, the facts regarding the relationship between Tomas and the minors were contested. Counsel for Tomas and for mother strongly disputed the Department's characterization of the relationship between mother and Tomas, but were not given an opportunity to present evidence supporting their positions. At the hearing, counsel for Tomas and mother took the position that their clients had a romantic relationship during the nine years they lived together and during which R.I. and A.I. were born. There was evidence that Tomas supported the children by providing food and shelter during this period. He apparently attended their school functions. Under these circumstances, like the court in Paul H., we cannot assume that had Tomas established paternity he would not have received reunification services. We remand for compliance with section 316.2 and rule 5.635, including a contested hearing during which Tomas may present evidence in an effort to establish he qualifies as a presumed father.
DISPOSITION
The order denying Tomas presumed father status and dismissing him from the proceeding is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
WILLHITE, J.
MANELLA, J.