Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DP024661, Deborah C. Servino, Judge.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Christos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
ARONSON, J.
Jose R. appeals from the juvenile court’s order denying his request to be declared the presumed father of his biological daughter Lilah R. (born June 2013). He also contends the juvenile court erred in denying him reunification services after the court found Lilah to be a dependent child of the juvenile court. (Welf. & Inst. Code, §§ 300, 395.) Jose challenges the sufficiency of the evidence to support the orders. Finding no basis to reverse, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In February 2014, Orange County Social Services Agency (SSA) social workers took eight-month-old Lilah into protective custody. Her mother, 16-year-old Daisy C. (born July 1997), was herself a dependent child of the Orange County Juvenile Court because of sexual molestation and physical abuse by the maternal grandmother’s boyfriends, exposure to domestic violence, and neglect by the maternal grandmother, who had an unresolved history of substance abuse.
On the current occasion, mother absconded in December 2013 with Lilah from the group home where they lived. SSA filed an amended petition (Welf. & Inst. Code, § 300, subd. (b); all statutory citations are to this code unless otherwise noted), alleging Lilah was at substantial risk of suffering serious physical harm or illness. SSA alleged that after absconding from the group home, mother resided in unsafe homes with the maternal grandmother, and later with mother’s boyfriend Julio. Mother had a history of substance abuse, mental health, and anger management issues. According to SSA, mother came from a multi-generational dysfunctional family and had been sexually abused by several men throughout her life. SSA recently had placed her in the only mother-child group home in Orange County.
Mother advised social workers she was uncertain who fathered Lilah. She admitted having sex with both Julio and an older man, whom she initially refused to identify. Julio was present for Lilah’s birth, signed a declaration of paternity, and appeared on Lilah’s birth certificate.
At the detention hearing, mother identified appellant Jose R., age 20, as the other potential father. Jose had suffered convictions for vandalism and gang offenses, and was on probation until 2015. Jose also had fathered a child with another 15-year-old girl.
Jose told a social worker in late March 2014 he wanted to “step up and help provide for the child.” Paternity testing established Jose was Lilah’s biological father. The social worker initially had “no issue with finding Jose... the presumed father” and granting him supervised visitation. She “commend[ed his] willingness to step up and desire to provide for” Lilah, but had “grave concerns regarding any type of placement with” Jose or his family. She referred him to individual therapy to address his sexual involvement with minors, which was “very exploitative of these vulnerable young females.” She also faulted Jose and his mother for harboring mother after she ran away from the group home, and Jose for resuming a sexual relationship with mother during this period. Jose later stated he was willing to pay child support for Lilah, wanted a chance to provide for her, and was willing to participate in parenting classes and individual counseling.
SSA recommended that the court deny Jose’s request to be declared Lilah’s presumed father. The juvenile court conducted an evidentiary hearing on the issue in April and May 2014.
Jose testified he met mother when introduced by a mutual friend named Kayla, who Jose knew was a juvenile court dependent. Jose and mother never dated, but had casual sex on one occasion. Jose believed mother was 18 years old at time, and only later discovered she was 15.
Mother contacted him about a month later on Facebook and advised him she might be pregnant. They met at the maternal grandmother’s home to discuss the pregnancy. Mother said she was in a relationship with Julio and did not know who the father was. Jose told her he was “willing to help her out with anything” and provide for her if the baby was his, but mother asked him to leave.
Jose had no further contact with mother until after Lilah’s birth. He believed mother blocked him from sending Facebook messages after she advised him of the pregnancy. Shortly after Lilah’s birth, mother sent Jose a photo of the newborn via Facebook. Jose attempted to send a congratulatory Facebook message, but the message did not go through.
About six months later, mother responded to Jose’s messages and agreed to let him see Lilah. Jose and his family visited with mother and Lilah for about an hour in a parking lot near Lilah’s daycare provider. Jose obtained mother’s phone number a few weeks later and they communicated a few times about paternity testing. Mother wanted Julio, but not Jose, to test because she feared Jose would get in trouble and she wanted Jose “to be around for” Lilah. According to Jose, he offered to pay birth and other expenses and “be there for the baby and her, ” but mother “didn’t want to have anything to do with [him] because she thought the baby was Julio’s.”
About three weeks later, mother advised Jose she feared “they were going to take the baby away, ” and she planned to run away from her group home. Jose agreed to let mother and Lilah live with him because he did not want them “on the streets” and he was “trying to be responsible for [his] own kid.”
Jose picked up mother and Lilah down the street from the group home. Mother stayed with Jose but visited the maternal grandmother on Sundays. Jose did not know why mother had been removed from the maternal grandmother’s home.
Jose claimed he provided Lilah with what she needed, including a car seat. He always checked Lilah when she returned on Sundays to make sure she was all right. Jose provided some baby items, including a high chair or booster seat, and toys, while mother and Lilah lived with him. Jose also claimed to have given mother money, but did not specify how much.
Jose told a neighbor Lilah was his daughter. He took mother and Lilah to the zoo and out to eat. He bought food and fed Lilah while she lived with him. He did not bathe Lilah because he feared he might drop her, but he did play with her. Jose would care for the baby after he got home from working the graveyard shift around 5:00 a.m. Sometimes he woke mother up to care for the baby because he was dirty from work. Jose denied having sexual relations with mother while she lived with him and his family. He admitted they did not take Lilah to get required immunizations because mother feared social workers would take the child.
Three or four weeks after mother came to live with Jose, mother returned “bruised up” after a Sunday visit with the maternal grandmother. Mother reluctantly told Jose that Julio caused the injuries. Jose and mother argued, and the next day they decided it was better for mother to live with the maternal grandmother. Jose claimed mother initially left Lilah with Jose, but came back about 15 minutes later and took Lilah from Jose’s arms and departed. Jose and mother had no contact after she left and he did not provide any support for mother or Lilah. Jose agreed he failed to protect Lilah by allowing her to go to a place where mother had been injured.
Jose had a five-month-old son with another young mother, who was currently 16 years old. He claimed he did not know this girl was a minor at the time they had sex. At the beginning of February 2014, Jose attempted to put Lilah on his insurance at work, but his employer demanded a birth certificate or evidence of adoption.
Jose’s sister, Luz, testified Jose revealed he had a daughter and showed the family pictures of Lilah on Facebook when Lilah was about three months old. The family had a brief encounter with Lilah when she was six or seven months old. Mother stayed with Jose in the family’s apartment for about three weeks after she ran away from the group home. During this period, Jose assisted in caring for Lilah after he got home from work. Jose referred to Lilah as his daughter to family, friends and neighbors, but admitted it was possible she was not his biological child.
Mother testified Jose knew she was 15 years old when they had sex around September 2012 and she felt pressured into the encounter. Mother advised Jose she was pregnant but did not know if he was the father. She blocked him from sending Facebook messages after he told her he made another girl pregnant. Mother told him she did not want him to have anything to do with her pregnancy and Jose acquiesced to this arrangement. Mother ran away from her placement, but authorities found her about six months into the pregnancy. Jose did not offer any support after mother advised him of Lilah’s birth. He supported her when she lived with him, and he treated Lilah like a daughter. He also told friends Lilah was his daughter, but he “wouldn’t really do anything” to take care of Lilah. Mother did “most of the diaper changing, most of the feeding, bathing her, changing her.” Jose would “just play with her.” Jose and mother had sex every day when she lived with him after running away. She moved out because Jose wanted her out, fearing he would be arrested. Jose offered to keep Lilah, but mother refused. Jose did not seem to care where mother and Lilah went after they left his home, although he wanted to make sure she had a place to stay.
Mother testified Julio did not injure her, and she denied telling Jose or his family that he did. Jose did not ask about providing for Lilah after mother moved out and he did not provide any assistance. She called him a few times after she moved out, and asked to move back in with him, but Jose said “he wanted things to die down for a week or two” and was hoping Julio would not contact SSA about mother staying with Jose.
The juvenile court found Jose did not qualify as a presumed father under Family Code section 7611, subdivision (d) (§ 7611(d)), because he failed to help mother with prenatal care or help pay her pregnancy and birth expenses, did not take prompt legal action to establish paternity or obtain custody, and did not seek to have his name placed on Lilah’s birth certificate. The court found he knew where the maternal grandmother lived and “could have taken some action” to establish paternity. The court found Jose’s conduct towards Lilah was merely incidental to his concern with mother. The court noted Jose asked mother to move out and “did not continue to provide care for mother and child, ” and did not seek to visit Lilah. The court also noted Jose declined mother’s request to move in with him. The court explained, “Father acted out of [] self interest and convenience, and, given the totality of everything and all the factors in the three to four weeks that [Lilah] was living in [Jose’s] home, it was indicated that his care of [Lilah] was merely incidental and that [Jose has] not shown by a preponderance of evidence that he had received the child into his home and openly held her out as his own.”
The parties submitted the jurisdictional and dispositional issues to the court based on the social worker’s reports and testimony at the paternity hearing. The court found the allegations of amended second petition true, and declared Lilah a dependent child of the juvenile court. The court vested custody of Lilah with SSA, and ordered reunification services for mother. It found reunification services for Jose would not be in Lilah’s best interests: “[Jose] has made a series of very bad decisions that place this child at risk.... [¶] He first off had sex with a 15-year-old girl, who he must have known was 15.... There is a law... that adults should not be having sex with minors because there is... a differential in the power.... between adults and [minors]. And [Jose] has done that twice.... [¶] And then father helped the mother abscond... and [Lilah] was not able to receive shots. [¶] [Jose drove] without a driver’s license, ... and didn’t report mother to social services [or the police and]... kept [Lilah] from getting... into the safe environment she should have been in.”
II
DISCUSSION
A. Substantial Evidence Supports the Juvenile Court’s Finding Jose is Not Lilah’s Presumed Father
Jose contends substantial evidence does not support the juvenile court’s denial of his request for presumed father status. He asserts the record contains uncontradicted evidence he received Lilah into his home and openly held her out as his natural daughter.
Establishing a biological father’s status determines his right to participate in dependency proceedings. (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.) Presumed fathers are vested with greater parental rights than mere biological fathers. A presumed father is a parent entitled to receive custody of the child under section 361.2 and reunification services under section 361.5. (In re M.C. (2011) 195 Cal.App.4th 197, 212-213 (M.C.); In re Eric E. (2006) 137 Cal.App.4th 252, 258 [“primary purpose of achieving presumed father status in the dependency context is for the presumed father to have the right to reunification services and to custody”].)
A man seeking presumed father status has the burden of establishing by a preponderance of the evidence the facts supporting his claim. (In re T. R. (2005) 132 Cal.App.4th 1202, 1210 (T. R.).) We review a juvenile court’s determination of presumed parentage status under the substantial evidence standard. (M.C., supra, 195 Cal.App.4th at p. 213.) We construe the evidence most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence but instead examine the whole record to determine whether a reasonable trier of fact could have found for the respondent. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) Here, the issue on appeal is whether the evidence compels a finding in favor of Jose as a matter of law. (See In re I.W. (2009) 180 Cal.App.4th 1517, 1528 [whether the evidence was uncontradicted and unimpeached and of such a character and weight as to leave no room for a contrary judicial determination].)
Section 7611(d) provides in relevant part: “A person is presumed to be the natural parent of a child if the person meets the conditions provided... in any of the following subdivisions: [¶]... [¶] [] The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.” (See also M.C., supra, 195 Cal.App.4th at pp. 211-212 [§ 7611(d) provides the statutory framework for judicial determinations of parentage, and governs private adoptions, paternity and custody disputes, and dependency proceedings]; In re Sabrina H. (1990) 217 Cal.App.3d 702, 708 [“The statutory purpose [of section 7611] is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not”].)
Jose argues “[t]he plain language of [§ 7611(d)], states that a father qualifies for presumed status if he receives the child into his home and holds the child out as his child. It does not state, if he receives the child into his home, holds the child out as his child, and helped with prenatal care and sought legal custody and got his name put on the birth certificate, and provided for the child for a specific time period.” He also asserts under section 7611(d) the time in the home need not continue for any specific duration, and the court’s ruling runs afoul of the public policy favoring a child having two parents to provide emotional and financial support.
Jose relies on Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 374 (Charisma R.), disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7. Charisma R. upheld the lower court’s finding a domestic partner qualified as a presumed parent under section 7611(d), reasoning that the statute did not require the domestic partner to show she parented the child for an extended duration. The court observed “the ‘receiving’ requirement is a necessary formality, but not one that requires ‘receipt’ [of the child] for any particular duration.” (Charisma R., supra, 175 Cal.App.4th at p. 372; see Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).) The court explained, however, “receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship....” (Charisma R., supra, 175 Cal.App.4th at p. 374). The court held there was sufficient evidence the domestic partner openly held the child out as her natural child because she attended the birth and cut the umbilical cord, the child’s hyphenated last name on the birth certificate included her last name, she accepted the child into the couple’s shared home, she identified herself as a parent on a birth announcement and in other fora, she communicated as a parent with various people and she provided care for the child until the biological mother and child moved out several weeks after the birth. (Id. at pp. 374-375.) The court also recognized the public policy favoring a child having two parents to provide emotional and financial support. (See Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 123; Librers v. Black (2005) 129 Cal.App.4th 114, 123 [“whenever possible, a child should have the benefit of two parents to support and nurture him or her”].)
Charisma R. cited the following passage in T.R. with approval: “‘[I]n determining whether a man has “receiv[ed a] child into his home and openly h[eld] out the child” as his own [(§ 7611, subd. (d))], courts have looked to such factors as whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental. [Citations.]’ (In re T.R., supra, 132 Cal.App.4th at p. 1211.)” (Charisma R., supra, 175 Cal.App.4th at p. 376.)
Applying these factors to the record before us, we conclude substantial evidence supported the juvenile court’s rejection of Jose’s claim of presumed father status. Jose failed to establish or assert parental rights after he learned of mother’s pregnancy. Even if mother initially told Jose she did not want him to contact her, the trial court reasonably could conclude Jose abandoned his parental responsibilities by failing to maintain contact with mother through intermediaries like the maternal grandmother or Kayla. No evidence showed Jose communicated a willingness to assist mother or expressed an interest in mother’s and Lilah’s health and welfare. Nor did Jose express an interest in whether mother had sought prenatal care, or her plans for the child’s birth. Tellingly, Jose failed to offer financial assistance with pregnancy and birth expenses.
After Lilah’s birth, Jose took no action to ascertain paternity or fulfill parental commitments. He did not seek to pay expenses, inquire about the child’s birth certificate, or seek a declaration of paternity. Jose only provided support during the brief period mother lived with him after she ran away. The juvenile court reasonably could conclude his interest in resuming sexual relations with mother took precedence to establishing a parental relationship with Lilah.
Although Jose apparently told family and friends Lilah was his daughter, he did not “really do anything” to take care of Lilah while she lived in his home. Although he may have provided some food, toys and baby items during Lilah’s brief stay, mother did “most of the diaper changing, most of the feeding, bathing her, changing her.” Jose would “just play with her.”
Jose, fearing arrest, told mother to move out even though he knew mother would not leave Lilah behind. Jose seemed indifferent to where mother and Lilah relocated, and never offered to provide for Lilah’s care. Mother later called to ask whether she could move back in with him, but he rebuffed her. Jose took no action to protect Lilah after she left his home, even though he knew mother was a dependent child on the run from her placement, and he also knew mother apparently returned to a place where she had suffered abuse. Jose was “unwilling to proclaim paternity when there might have been some cost to him” in the form of potential criminal liability. (See In re Spencer W. (1996) 48 Cal.App.4th 1647, 1654 [man unwilling to assert paternity in the face of possibly-reduced government assistance payments].)
Jose argues the juvenile court erred in relying on evidence he did not help mother with prenatal care, birth expenses, or seek prompt legal action to establish paternity or have his name put on the birth certificate because mother prevented him from being involved during and after the pregnancy. Jose argues, “The factors the court was considering were mostly factors that father had no control over.” We disagree. The issue is not whether Jose could have overcome mother’s initial reluctance to have contact with Jose, but whether Jose attempted to find mother and assist her during the pregnancy and after Lilah’s birth. The court reasonably could conclude his failure to do so demonstrated a lack of commitment to his parental responsibilities. Moreover, the mother’s actions did not prevent him from taking legal steps to establish his paternity. Jose’s subsequent conduct also showed a pronounced reluctance to accept his duties as a parent. Fearing arrest and with another child to support, Jose opted to disassociate himself from mother, and therefore Lilah, when they needed support and protection. His actions demonstrated an interest in parenting Lilah only when it was safe and convenient for him to do so. They did not establish a full commitment to fatherhood.
Jose also argues “no one else was trying to be the father of Lilah” and he was the only chance Lilah had of having a father in her life. As noted, he cites the public policy embodied in the law favoring a child having two parents to provide emotional and financial support, but his concerns are speculative. Nothing suggests Lilah will never have two parents supporting her. Moreover, as the Supreme Court has observed, “the biological father retains ‘parental rights that simply differ in degree [from] the parental rights conferred on a presumed father’” (In re Jessa V. (2004) 32 Cal.4th 588, 599 (Jessa V.)) and the court’s ruling “does not itself terminate” his “parental relationship with the child.” (Id. at p. 610.)
Substantial evidence supports the juvenile court’s order that Jose did not qualify as a presumed father under section 7611(d).
B. Kelsey S. Is Not Applicable
Although his brief is somewhat unclear on the point, Jose appears to argue the juvenile court’s ruling ran afoul of Kelsey S., supra, 1 Cal.4th 816. There, the unwed biological father filed an action two days after the child’s birth to establish his parental relationship with the child and was thwarted only because the court’s order granting him custody was disobeyed. (Id. at p. 822.) Kelsey S. was an adoption case. It held a biological father’s federal constitutional right to due process might prohibit the termination of his parental relationship absent a showing of his unfitness as a parent where the father timely and sufficiently demonstrated a full commitment to his parental responsibilities. (Jessa V., supra, 32 Cal.4th at p. 610; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1055.)
Here, Jose was not thwarted from becoming a statutory presumed father by mother, SSA, or anyone else. As explained above, although mother cut off on line contact with Jose on several occasions, nothing prevented him from seeking out mother and Lilah through the maternal grandmother, Kayla, SSA or perhaps the police. Jose simply took no action to formalize a relationship with Lilah, or to shoulder legal responsibility for the child, until after the dependency petition was filed. (Kelsey S., supra, 1 Cal.4th at p. 849 [“A court should also consider the father’s... prompt legal action to seek custody of the child”].) The same factors applied by the juvenile court under section 7611(d) would apply under a Kelsey S. analysis. (See In re Elijah V. (2005) 127 Cal.App.4th 576, 583 [man must show he was thwarted by a third party from exercising his parental rights and he made a full commitment to his parental responsibilities].)
In a related argument, Jose complains SSA rebuffed his requests for visitation after dependency proceedings commenced. He requested visits from the social worker during his initial interview in late February 2014, not long after the detention hearing. He made a second request through appointed counsel shortly before biological paternity was established around mid-April 2014. He argues visitation should begin immediately after paternity is established unless there is reason to believe the contact would harm the child. (See Edwards, Engaging Fathers in the Child Protection Process: The Judicial Role, (Spring 2009) Juvenile and Family Court Journal, No. 2, at p. 13.) Jose cites no statutory or case authority holding an alleged biological father is automatically entitled to visitation absent a finding of detriment. The juvenile court asked Jose’s counsel for legal authority addressing the issue, and Jose did not pursue the claim. Jose therefore forfeited the issue because the juvenile court never had occasion to consider whether visitation would be detrimental. (See In re Zacharia D. (1993) 6 Cal.4th 435, 449 [trial court has authority to grant a biological father custody, and presumably visitation, of his child so that he can qualify as a presumed father].) In any event, nothing suggests visitation after Jose’s biological paternity was established would have impacted the court’s resolution of the presumed father issue, which properly focused on what Jose did before Lilah’s dependency case commenced.
C. The Juvenile Court Did Not Abuse Its Discretion in Determining Reunification Services for Jose Would Not Benefit Lilah
The juvenile court may order reunification services for the child and the biological father if the court determines the services will benefit the child. (§ 361.5, subd. (a).) We review court’s decision under the abuse of discretion standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Jose argues the court abused its discretion in declining to order services because he “was willing to take programs to learn how to make better choices going forward and to be the best father he could be for [Lilah], ” and “[r]reunification services for father would benefit [Lilah] because to rule otherwise would leave [Lilah] fatherless.” He also cites Family Code section 7570, which contains a legislative declaration “[t]here is a compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors’ benefits, military benefits, and inheritance rights. Knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one’s father is important to a child’s development.” (Fam. Code, § 7570, subd. (a).)
As noted above, the juvenile court found reunification services for Jose would not be in Lilah’s best interests because Jose had “made a series of very bad decisions, ” including knowingly and repeatedly having sex with 15- and 16-year-old girls, helping mother abscond, failing to report mother to social services or the police, and allowing mother to expose Lilah to an unsafe environment. We discern no abuse of discretion. Case law rejects the notion a child is necessarily benefited by reunification services with a biological parent where there is no preexisting parent-child relationship. (In re Justice P. (2004) 123 Cal.App.4th 181, 192 [“cases that state a child may be better off with his or her biological parent rather than with strangers do so when the biological parent has shown a sustained commitment to the child and parenting responsibilities”]; In re Joshua R. (2002) 104 Cal.App.4th 1020, 1029 [rejecting assertion biological paternity is always relevant and a decision leaving a child fatherless is necessarily harmful].) Jose’s relationship with Lilah amounted to less than a month of contact. Mother stated he did not really take care of Lilah, rather he just played with her. Nothing suggests he and Lilah established a bond or attachment during this brief period. Jose had no problem ordering mother and Lilah to leave his residence when he felt his interests were threatened. Finally, Jose’s poor decisionmaking suggested it was unlikely he would make good choices vis-à-vis Lilah going forward. Jose has not demonstrated the juvenile court abused its discretion in determining reunification services would not benefit Lilah.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P.J.IKOLA, J.