Opinion
A152062 A152992
10-01-2018
In re C.B., a Person Coming Under the Juvenile Court Law. LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. D.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. JV320477-B)
In this appeal from a juvenile dependency action involving C.B. (Minor), D.S. challenges the denial of her request for presumed parent status. D.S. contends the juvenile court erred by failing to make an express finding regarding whether she qualified as a presumed parent for Minor, and by failing to weigh her claim against that of Minor's presumed father, J.B. We conclude the court erred by proceeding directly to the question of detriment under Family Code section 7612, subdivision (c), before deciding whether D.S. was a presumed parent under section 7611, subdivision (d). However, the error was harmless. In addition, the court was not required to weigh D.S.'s claim against J.B.'s. Accordingly, we affirm the denial of D.S.'s request for presumed parent status.
Case No. A152062 commenced after D.S. filed a notice of appeal on July 31, 2017. On October 16, 2017, D.S. filed another notice of appeal, and, on October 30, 2017, she amended it. Based on these later two notices, Case No. A152992 commenced. In both cases, D.S. challenges the denial of her request for presumed parent status. We granted D.S.'s motion to consolidate the two appeals on December 28, 2017.
All undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 2017, the Lake County Department of Social Services (Department) filed a Welfare & Institutions Code section 300 petition on behalf of Minor, who was 21 months old at the time. The petition alleged S.A., Minor's biological mother, was unable to adequately protect or care for Minor because of untreated substance abuse issues, lack of appropriate housing, and S.A. left Minor with D.S., "an unsuitable caretaker." (Welf. & Inst. Code, § 300, subds. (b), (g).) The petition alleged D.S. had "an extensive history of substance abuse and domestic violence. [D.S.'s] daughter was recently taken into the custody of Child Protective Services for failure to protect her daughter from ongoing substance abuse and domestic violence. The mother knew or should have known the child was at risk of physical harm and neglect in the care of [D.S.] and she failed to make adequate arrangements to protect the child."
The petition stated J.B., the alleged father, failed to protect Minor because J.B. should have known about S.A.'s substance abuse issues, criminal behavior, and unstable housing. (Welf. & Inst. Code, § 300, subd. (b).) J.B. went to jail in August 2016. During his incarceration, and since his release from jail, J.B. did not make appropriate arrangements for the care and custody of Minor. (Id., § 300, subd. (g).)
The detention report, filed February 27, 2017, stated Minor was "currently staying with" D.S., who was the aunt of Minor's half-sibling. It stated that, during a previous investigation regarding Minor's half-brother, D.S. tested positive for methamphetamines in September 2016. In January and February of 2017, D.S. submitted to four more drug tests, testing positive for "amphetamines and methamphetamines" on each occasion.
On March 2, 2017, the juvenile court held a detention hearing, detained Minor, and set a jurisdictional hearing. S.A. and D.S. attended the detention hearing. D.S. was identified on the court's minutes as a friend. J.B. did not attend. The court was informed that J.B., the alleged father, was in a drug rehabilitation facility and wanted to be part of the proceedings. The court appointed an attorney for J.B.
On March 27, 2017, D.S. filed Judicial Council Form JV-505 (JV-505), requesting the court to find she was Minor's presumed parent, and, on the same day, the court appointed counsel for D.S. D.S. stated Minor lived with her from his birth in May 2015 to December 2015, and from June 2016 to March 2017. D.S. told a number of persons and entities that Minor was her child. D.S. claimed to have been Minor's "sole provider for 16 months straight." D.S. stated her daughter referred to Minor as her brother, and Minor called D.S. "Mommy."
On April 24, 2017, J.B. filed a JV-505, indicating he signed a voluntary declaration of parentage when Minor was born in May 2015 and that Minor lived with him from May 2015 to August 2016. He claimed to have told others Minor was his son, and to have cared for Minor. J.B. stated, "I love my son very much [and] wish to have the opportunity to raise him [and to] be a family together."
The juvenile court continued the jurisdictional hearing a number of times to address the issues of parentage. On April 25, 2017, D.S. filed a brief in support of her request for presumed mother status, arguing she "evolved into the role of a presumed parent with the consent of the biological mother." D.S. contended she cared for Minor "in her home for 16 months of the child's life. She provided for all of his physical and emotional needs and told people that he was her child." In support of her request, D.S. submitted a handwritten agreement signed by D.S. and S.A. in October 2016, whereby S.A. granted D.S. "temporary custody" of Minor while S.A. was incarcerated. D.S. also submitted a letter from a Lakeport program called HOME, indicating that, at the time of D.S.'s enrollment, she "claimed parental rights for" Minor.
In an amended addendum report, the Department opposed D.S.'s request for presumed parent status and supported J.B.'s request. The Department stated D.S. was not Minor's biological mother; she was not listed on his birth certificate; she was not obligated to support Minor; and she had never been in a romantic relationship with S.A. or J.B.
S.A. told the Department she moved in with D.S. a few weeks before Minor was born because J.B. was arrested and briefly incarcerated around that time. S.A. and Minor had their own room, and J.B. also resided there. S.A. considered D.S. to be the equivalent of Minor's aunt. Minor referred to both S.A. and D.S. as "mommy," and "he was never corrected because it was easier for him to say." S.A. was arrested in October 2016, and she allowed Minor to live with D.S. until she "could get clean." S.A. visited Minor at D.S.'s home "for short periods of time approximately two or three days a week." From October 2016 until Minor's detention on March 2, 2017, D.S. was Minor's "primary caretaker."
The report incorrectly states Minor's detention occurred on February 22, 2017.
The Department disputed D.S.'s claim to have held Minor out as her own child, providing evidence D.S. often referred to Minor as her nephew. The Department argued it would not be detrimental to Minor not to grant D.S. presumed mother status because D.S.'s home was not "stable." While living with D.S., Minor was "exposed on numerous occasions to domestic violence," and D.S. was "actively using methamphetamines while caring for" Minor. D.S. had "a current open Dependency Court case regarding her daughter . . . ." In addition, D.S. had "previous CWS history related to her three older children," and she failed to reunify with any of them.
The Department filed a brief opposing D.S.'s request, arguing D.S. "failed to openly hold the child out as her natural child," and stating the nature of D.S.'s "relationship with the minor was one of a caretaker, at best, and more appropriately, as a family friend helping to take care of this child." The attorney for Minor filed a brief opposing D.S.'s request, arguing the case did not "involve surrogacy, relinquishment by the birth mother, abandonment at birth, no competing maternity claim, or a nonbiological parent in a same-sex relationship . . . ."
With regard to J.B., the Department argued his request for presumed father status should be granted because he was Minor's biological father; he held Minor out as his son; he "lived with and provided care for his son from the time of birth up until he was incarcerated;" and he "made active efforts to be involved with his son's life . . . ."
On June 28, 2017, the court held a hearing regarding the parentage issues. J.B. was not present, but his attorney submitted based on his JV-505, and the parties stipulated J.B. was listed as Minor's father on Minor's birth certificate. The court found J.B. was Minor's presumed father. After hearing testimony from D.S. and two social workers, the court continued the matter to consider D.S.'s request for presumed parent status.
On July 24, 2017, the court ruled D.S. was not a presumed parent of Minor. The court stated there was no dispute that D.S. received Minor into her home, but the evidence regarding whether D.S. held Minor out as her own child was ambiguous. For example, D.S. testified she often referred to Minor as her nephew, and she never told anyone Minor was her son when in the presence of Minor's biological parents. D.S. admitted Minor referred to both her and S.A. as "mommy." Based on the evidence, the court stated there was a "real question" as to whether S.A. acquiesced to D.S. assuming the role of a parent, or whether S.A. intended D.S. to be Minor's temporary caretaker.
In considering whether there was evidence to rebut the presumption that D.S. was a parent of Minor, the court noted "there is a certain degree of bad conduct" by D.S., but the court also commended D.S. for maintaining "a period of sobriety" since Minor and her own daughter were removed from her care. However, the court stated it intended to focus on "the second element of 7612(c), without ultimately making a decision on whether [D.S.] otherwise qualified as [a] presumed parent . . . ." A little later, the court reiterated that it was not "deciding whether [D.S.] is a presumed parent [under section 7611, subdivision (d)]," but was instead focusing on whether "a failure to recognize her . . . as a third parent would be detriment[al] to the child."
The court concluded that declining to recognize D.S. as a third parent would not be detrimental because the relationship between D.S. and Minor "was not the most stable." The court relied on the jurisdictional report from the dependency case involving D.S.'s daughter, which included allegations of general neglect regarding D.S.'s three older children. These children were declared dependents of the court due to D.S.'s substance abuse issues. D.S. failed to reunify with them. D.S. also had a criminal record, including a conviction for willful cruelty to a child and possession of a controlled substance for sale.
There was evidence Minor was present in D.S.'s home during "at least one incident of domestic violence." D.S. repeatedly tested positive for amphetamines and methamphetamines in 2016 and 2017, including while Minor was in her care. Based on this evidence, the court refused to recognize D.S. as a third parent. The court ruled that D.S. was not a presumed parent of Minor.
After D.S. was excused from the courtroom, the court conducted the jurisdictional hearing. S.A. was present, but J.B. was not. After amending the petition to strike the allegation that J.B.'s whereabouts were unknown, the court found true the allegations that Minor's parents failed to protect him, failed to provide for his support, and there was a substantial risk Minor would be abused or neglected. (Welfare & Institutions Code, § 300, subds. (b), (g), (j).) The court sustained the petition and found Minor to be a dependent of the court.
One week after the jurisdictional hearing, on July 31, 2017, D.S. filed a notice of appeal from the court's denial of her request for presumed parent status. On September 14, 2017, at the disposition hearing, the court denied reunification services for S.A. and J.B., and the court set the matter for a Welfare and Institutions Code section 366.26 hearing (.26 hearing). J.B. was present at the disposition hearing, but D.S. and S.A. were not. After the hearing, J.B. petitioned this court for an extraordinary writ. On November 22, 2017, we denied the writ petition. (J.B. v. Superior Court (Nov. 22, 2017, A152453) [nonpub. opn.].)
After the disposition hearing, D.S. filed another notice of appeal on October 16, 2017. On October 30, 2017, D.S. filed an amended notice, stating she was appealing from the "[d]enial of presumed mother status request[ed] on 7/24/2017, and appealable from [the] 9/14/2017 disposition order . . . ."
DISCUSSION
On appeal, D.S.'s first argument pertains to whether we can review the court's denial of her request for presumed parent status. D.S. contends we can do so because the court "did not provide [her] proper notice of the need to file . . . a writ petition . . . to challenge the jurisdiction and disposition proceedings." On the merits, D.S. argues the court prejudicially erred by proceeding directly to the question of detriment under section 7612, subdivision (c) without first deciding whether she was a presumed parent under section 7611, subdivision (d). D.S. also contends the court erred by failing to weigh her claim to parentage against J.B.'s. We agree with D.S. that we can review the court's decision, but we affirm the court's denial of her request for presumed parent status.
I.
Construing D.S.'s Appeal as a Writ Petition
In dependency cases, "the jurisdictional order is not an appealable final judgment, [and] any errors in the jurisdictional phase of the proceedings are reviewable on appeal from the dispositional order." (In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1209.) However, when the court, at the disposition hearing, denies or terminates reunification services and refers the case for a .26 hearing, "the traditional rule favoring the appealability of dispositional orders yields to the statutory mandate for expedited review." (Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 155 (Anthony D.).)
Ordinarily, the order setting the .26 hearing must be challenged by writ petition. (Welf. & Inst. Code, § 366.26. subd. (l); Cal. Rules of Court, rules 8.450, 8.452.) All orders issued at this hearing are "subject to the bar of section 366.26, subdivision (l) . . . ." (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1023.) However, there is an exception when the court fails to provide notice of the writ requirement, and courts can construe a notice of appeal filed under such circumstances as a writ petition. (Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 260 (Jennifer T.).)
Here, the juvenile court held a jurisdictional hearing on July 24, 2017. During the same proceeding, the court ruled D.S. was not a presumed parent of Minor. As a result, D.S. was not present at the disposition hearing, and she was not notified of the writ requirement. In arguing the order denying D.S.'s request for presumed parent status is not appealable, the Department contends that, after the court denied her request, D.S. was no longer a party to this case, so the court was not required to provide her with notice of the writ requirement. We reject this argument.
D.S. became a party when she appeared in the case and requested the court to recognize her as a presumed parent. (In re Paul H. (2003) 111 Cal.App.4th 753, 759 [alleged father in dependency proceeding becomes a party when " 'he appear[s] and assert[s] a position.' "].) Even if she was no longer a party by the time of disposition, the court was aware of her intent to challenge its denial of her request for presumed parent status because she filed a (premature) notice of appeal on July 31, 2017. The Department recognizes D.S. had to wait until after disposition to challenge the ruling. But, at the disposition hearing, the court set a .26 hearing, so the court should have notified D.S. of the need to file a writ petition. (Anthony D., supra, 63 Cal.App.4th at p. 155.) Having failed to do so, we find good cause to construe D.S.'s October 30, 2017 notice of appeal as a writ petition, and we reach the merits of her contentions. (Jennifer T., supra, 159 Cal.App.4th at p. 260.)
II.
The Presumed Parent Determination
D.S. contends the court "erred in failing to determine if [D.S.] qualified for presumed parent status, and if she did, by failing to weigh [D.S.]'s presumed parent claim against [J.B.]'s presumed parent claim." We disagree.
A. Governing Law and Standard of Review
"The Uniform Parentage Act (§ 7600 et seq.) . . . establishes the framework by which California courts make paternity determinations." (In re P.A. (2011) 198 Cal.App.4th 974, 980 (P.A.).) "Designation as a presumed parent is critical in dependency proceedings because it entitles the presumed parent to appointed counsel, custody absent a finding of detriment and a reunification plan . . . . Though most of the decisional law has focused on the definition of the presumed father, the legal principles concerning the presumed father apply equally to a woman seeking presumed mother status." (In re Salvador M. (2003) 111 Cal.App.4th 1353, 1357 (Salvador M.).)
"On appeal, we independently interpret statutes and apply the substantial evidence standard in reviewing a juvenile court's finding whether a person is a presumed parent. [Citations.] In so doing, we consider the evidence and all reasonable inferences therefrom in favor of the court's finding and do not reweigh the evidence or credibility of witnesses." (In re L.L. (2017) 13 Cal.App.5th 1302, 1310 (L.L.).)
1. Presumed Parent Status
Section 7611 sets forth rebuttable presumptions of paternity. A person can be recognized as a presumed parent if he or she "receives the child into his or her home and openly holds out the child as his or her natural child." (§ 7611, subd. (d).) "A person who claims entitlement to presumed parent status has the burden of establishing by a preponderance of the evidence the facts supporting the entitlement." (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 774 (R.M.).) The parentage presumption "is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence." (§ 7612, subd. (a).)
"When determining whether the person has met the statutory requirements of receiving the child into his or her home and openly holding the child out as his or her own, the court may consider a wide variety of factors, including the person's provision of physical and/or financial support for the child, efforts to place the person's name on the birth certificate, efforts to seek legal custody, and the breadth and unequivocal nature of the person's acknowledgement of the child as his or her own. [Citation.] No single factor is determinative; rather, the court may consider all the circumstances when deciding whether the person demonstrated a parental relationship . . . ." (R.M., supra, 233 Cal.App.4th at p. 774.)
A person requesting presumed parent status must have a "fully developed parental relationship with the child." (R.M., supra, 233 Cal.App.4th at p. 776, italics omitted.) A "caretaking role" is not enough. (Id. at p. 777.) Instead, a presumed parent must demonstrate " 'a full commitment to [parental] responsibilities—emotional, financial, and otherwise.' " (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.) " ' "[T]he premise behind the category of presumed [parent] is that an individual . . . has demonstrated a commitment to the child and the child's welfare." ' " (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 384-385.)
2. Recognizing a Third Parent
"In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall 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 . . . ." (§ 7612, subd. (c).) The Legislature intended this subdivision "to apply only in 'rare cases' in which a child 'truly has more than two parents' who are parents 'in every way.' (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.)" (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1090 (Donovan L.).) " '[A]n appropriate action' for application of section 7612, subdivision (c) is one in which there is an existing parent-child relationship between the child and the putative third parent . . . ." (Id. at p. 1091, original italics.)
B. The Court Erred by First Deciding the Issue of Detriment under Section 7612 , Subdivision (c), but the Error Was Harmless
D.S. argues the court erred by failing to find she qualified as a presumed parent under section 7611, subdivision (d). Instead, the court found that recognizing only two parents under section 7612, subdivision (c) would not be detrimental to Minor. The court expressly declined to decide whether D.S. qualified as a presumed parent under section 7611, subdivision (d).
Preliminarily, we reject the Department's contention that D.S. waived this issue by failing to object below. At the June 28, 2017 hearing, when the court indicated it intended to proceed directly to the question of detriment, the attorney for D.S. disagreed with this approach. Accordingly, D.S. did not waive the issue.
We agree with D.S. that the court erred by proceeding directly to the question of detriment under section 7612, subdivision (c), before deciding whether D.S. was a presumed parent under section 7611, subdivision (d). In In re M.Z. (2016) 5 Cal.App.5th 53 (M.Z.), the court of appeal addressed the same question, and observed "the express language of section 7612, subdivision (c) applies to 'persons with a claim to parentage under this division' (italics added), meaning the person requesting third parent status must first meet the criteria for parentage under the Uniform Parentage Act." (Id. at pp. 64-65.) Based on this language, the statute's legislative history, and other authorities, the court of appeal concluded that "a court considering a request for status as a third parent under section 7612, subdivision (c) should initially determine whether or not a person seeking status as a third parent can establish a claim to parentage . . . . Such an existing parent-child relationship is necessary before determining if recognition of only two parents would be detrimental to the child." (Id. at p. 66.) We agree with the reasoning of M.Z., and conclude the court erred when it addressed section 7612, subdivision (c), before deciding whether D.S. was a presumed parent under section 7611, subdivision (d).
Nonetheless, the error was harmless. To show prejudicial error, D.S. must demonstrate "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, a more favorable outcome is not reasonably probable for two reasons. First, there was sufficient evidence to conclude D.S. was not a presumed parent. (§ 7611, subd. (d).) Second, there was ample evidence to rebut the presumption. (§ 7612, subd. (a).)
First, as noted by the court, the evidence that D.S. held Minor out as her own child was ambiguous. When testifying, D.S. acknowledged she did not tell the Department that Minor was her child, and she stated the HOME program and doctors already knew Minor was not her biological son. D.S. admitted she did not tell anyone Minor was her son when in the presence of S.A. or J.B. Instead, D.S. often referred to Minor as her nephew. While S.A. granted D.S. temporary custody of Minor, D.S. knew S.A. "was going to come back some day," and D.S. intended to return Minor "back to his mom." Thus, D.S.'s acknowledgement of Minor as her own was not "unequivocal," and there was sufficient evidence for the court to expressly find D.S. was not entitled to presumed parent status. (R.M., supra, 233 Cal.App.4th at p. 774.)
It is true, as D.S. points out, that "an alleged parent is not required to consistently hold a child out as . . . her son in order to qualify as a presumed parent under section 7611, subdivision (d)." For example, in Salvador M., supra, 111 Cal.App.4th at page 1358, the court held there was substantial evidence to support a finding the minor's half-sister qualified for presumed mother status even though she held the minor out to some members of the community, but not others, as her son.
But here, unlike in Salvador M., even if D.S. qualified as a presumed parent under section 7611, subdivision (d), there was ample evidence to rebut the presumption under section 7612, subdivision (a). In an appropriate case, clear and convincing evidence that a person is not the minor's biological parent may rebut the presumption of parentage. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 120.) While biological paternity is not dispositive, evidence of inappropriate conduct and prior convictions may be sufficient to rebut the presumption. (In re T.R. (2005) 132 Cal.App.4th 1202, 1210-1212 (T.R.).)
Here, there was no dispute that D.S. was not Minor's biological mother. In addition, there was evidence of inappropriate conduct because D.S. exposed Minor to domestic violence, and D.S. was "actively using methamphetamines while caring for" Minor. D.S. had "a current open Dependency Court case regarding her daughter . . . ." D.S. had a criminal record, including a conviction for willful cruelty to a child and possession of a controlled substance for sale. Based on this rebuttal evidence, the court's error in proceeding directly to the question of detriment under section 7612, subdivision (c) was harmless. (See T.R., supra, 132 Cal.App.4th at p. 1212 [error in failing to apply the section 7611, subdivision (d) presumption was harmless because there was substantial evidence to rebut the presumption]; see also M.Z., supra, 5 Cal.App.5th at p. 66 [error was harmless where appellant "did not meet his burden to establish he qualified as a presumed parent . . . or a third parent . . . ."].)
C. Section 7612, Subdivision (b) Does Not Apply
D.S.'s final argument is that the court erred "by not conducting the weighing process required by section 7612, subdivision (b), and determining the competing claims of" J.B. and D.S. We disagree.
"If two or more presumptions arise under Section 7610 or 7611 that conflict with each other, or if a presumption under Section 7611 conflicts with a claim pursuant to Section 7610, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." (§ 7612, subd. (b).) Section 7610 provides that "[t]he parent and child relationship may be established . . . by proof of having given birth to the child," or "by proof of adoption."
The weighing process outlined in section 7612, subdivision (b) comes into play if there are two or more presumed parents, and if the court refuses to recognize one of them as a third parent. (See L.L., supra, 13 Cal.App.5th at p. 1317 ["If a third parent is not recognized under section 7612, subdivision (c), then a juvenile court generally must weigh the competing presumptions of two or more presumed fathers . . . ."]; see also P.A., supra, 198 Cal.App.4th at p. 981 [weighing process applies when there are "conflicting claims of paternity between a presumed father and a biological father."].) Here, as explained ante, there was ample evidence to rebut the presumption that D.S. was Minor's parent. Accordingly, the court did not, and was not required to, weigh D.S.'s claim to parentage against J.B.'s. Section 7612, subdivision (b) does not apply.
DISPOSITION
We affirm the court's denial of D.S.'s request for presumed parent status.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.