Opinion
E067032
02-21-2017
In re J.G., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. E.M., Defendant and Appellant.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1301176) OPINION APPEAL from the Superior Court of Riverside County. Donna L. Crandall, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant E.M. (Father) appeals after he was denied presumed father status for J.G. (Minor) and his Welfare and Institutions Code section 388 petition was denied. A section 300 petition was filed against B.A. (Mother) for Minor, who she gave birth to while incarcerated for burglary. Jo.G. was named as the alleged father. Reunification services were denied to both and a section 366.26 hearing was set. Just prior to the section 366.26 hearing, Father came forward claiming he had just become aware he was possibly Minor's father; a DNA test revealed he was in fact the father.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. --------
Father filed a section 388 petition requesting that he be granted presumed father status or that the juvenile court find he was a father within the meaning of Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). He requested that he be given custody of Minor with family maintenance services or be granted reunification services. The juvenile court denied the section 388 petition and terminated parental rights of Mother and Father. Father appeals the denial of his section 388 petition. We affirm the denial of the section 388 petition.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
In May 2015 plaintiff and respondent Riverside County Department of Public Social Services (the Department) received a referral that Mother had given birth to Minor while incarcerated. Mother advised hospital staff she planned to give Minor to a paternal aunt, D.G. There were concerns about D.G., and the fact that Mother had two previous children (A.G. & G.G.; the Siblings) removed from her care by the Department. The Siblings were both detained from Mother in 2013 due to general neglect and unresolved substance abuse issues. Jo.G. was the father of the Siblings. The parental rights of Mother and Jo.G. for the Siblings were terminated on February 27, 2015, because they made no progress in addressing their substance abuse. The Siblings were freed for adoption.
Mother admitted to the social worker who went to the hospital after Minor's birth that she had a criminal history and a history of substance abuse. She had been arrested on a theft charge. Mother tested positive for opiates at the time of Minor's birth. She insisted she took a Tylenol with Codeine for a toothache and it was given to her by her obstetrician. Mother intended to live with D.G. when she was released from custody. Minor had a negative drug screen.
Mother identified Minor's father as Jo.G. They were no longer together. Jo.G. acknowledged he was the father of Minor. Jo.G. was not in a place to take care of Minor. He wanted D.G., his sister, to be the legal guardian. Mother had prior convictions for burglary and shoplifting. Jo.G. also had prior convictions for burglary and shoplifting.
On May 14, 2015, Minor showed withdrawal symptoms and could not be discharged from the hospital as planned. Mother was returned to jail. Minor was placed in a foster home on May 15, 2015. D.G. was being assessed for placement. The adoptive parents of the Siblings were not willing to take Minor.
On May 18, 2015, the Department filed an amended section 300 petition against Jo.G. and Mother for Minor. It was alleged under section 300, subdivision (b), that Mother and Jo.G. both had a history of substance abuse, criminal histories, and had their parental rights to their other children terminated. It was additionally alleged that Mother had no ability to support Minor because of her incarceration within the meaning of section 300, subdivision (g). In addition, it was alleged as to both Mother and Jo.G. that they had previously lost custody of two children, and Minor was at risk of similar harm (§ 300, subd. (j)).
At the detention hearing conducted on May 19, 2015, the juvenile court found a prima facie case and ordered Minor be detained. Jo.G. was not on the birth certificate for Minor and was requesting a paternity test. The juvenile court ordered DNA testing.
B. JURISDICTION/DISPOSITION
A jurisdiction/disposition report was filed on June 15, 2015. The Department recommended that Jo.G. and Mother be denied reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). Minor was in a foster home. It was recommended he remain in out-of-home placement.
The Department had been unable to contact Jo.G. during the reporting period. Mother was to be released from custody on June 17, 2015. Mother insisted she was trying to get over her addiction. Mother was interviewed on June 5, 2015, and provided no information regarding other possible fathers of Minor. Mother wanted to participate in substance abuse treatment when she was released. She was no longer with Jo.G. Minor was progressing normally. D.G. was still being assessed for placement but initially it was determined the home was not appropriate.
A continuance of the hearing was granted on August 11, 2015. A second amended petition was filed on that day deleting the allegation under section 300, subdivision (g). No DNA test on Jo.G. had been performed; Jo.G. was not cooperating.
An addendum report was filed on August 11, 2015. The Department recommended a permanent plan of adoption. Minor had been subjected to a DNA test but Jo.G. had not appeared to take the test. Mother had been removed from her substance abuse treatment program for failing to show up; she had tested negative for substances during the reporting period. Mother had missed several visitations with Minor during the reporting period.
The jurisdiction/disposition hearing was held on August 20, 2015. Jo.G.'s counsel was relieved because Jo.G. was only an alleged father. Mother refused to participate in the proceeding. Jo.G. refused to take a DNA test and did not want to be named the presumed father. The juvenile court found the section 300, subdivision (b) and (j) allegations in the second amended petition true. Reunification services were denied to both Mother and Jo.G. The permanent plan was adoption but a section 366.26 hearing was not set because there was not an identified adoptive family.
On October 13, 2015, the Department filed a section 388 petition. The caregivers, who had custody of Minor since his release from the hospital after his birth, had decided to adopt him. The Department requested that a section 366.26 hearing be scheduled. On December 14, 2015, the matter was continued to give notice to Mother. The Department's section 388 petition was heard on January 7, 2016. Mother and Jo.G. were not present. The juvenile court granted the section 388 petition. The section 366.26 hearing was set for May 6, 2016.
On February 4, 2016, the Department filed a section 366.3 postpermanency status review report. The Department requested that adoption be ordered with the prospective adoptive parents. Minor was developing normally and was a happy baby. Minor had been with the prospective adoptive parents since the day he was released from the hospital. Minor had a strong bond with the prospective adoptive parents. The hearing was set for August 22, 2016. A notice to all unknown fathers was published on March 14, 2016.
On April 11, 2016, the prospective adoptive parents made a de facto parent request. A hearing was ordered for May 6, 2016. The prospective adoptive parents were named the de facto parents at the hearing.
C. SECTION 366.26 REPORT
The Department filed their section 366.26 report on April 14, 2016. Minor was developing normally and was 11 months old. Minor had a loving and strong bond with the prospective adoptive family. An addendum report was filed on August 10, 2016. Minor continued to develop a strong attachment to the prospective adoptive parents.
Father made his first appearance on August 22, 2016, which was the date set for the section 366.26 hearing and the section 366.3 review hearing. Father was appointed counsel. The Department advised the juvenile court they were prepared to go forward with termination of parental rights; however, Father was requesting DNA testing. The Department refused to pay for the test. Father's counsel represented that Father "was just contacted" and was told he may be Minor's father. Father's counsel requested that the Department pay for the DNA test. Father made approximately $1,500 a month and supported his five children. Father's counsel insisted Father was just notified he was the potential father. He would have been part of Minor's life had he known about Minor's existence. The juvenile court ordered that the Department and Father split the cost of the DNA test. The matter was continued for the section 366.26 hearing.
On September 9, 2016, Father filed a section 388 petition. Father's counsel sought the juvenile court to change its order and make the Department pay for his DNA test. The juvenile court set the matter for a hearing.
The matter was heard on September 23, 2016. The juvenile court ordered that the Department pay for the DNA test. The DNA test had shown that Father was Minor's father. Father's counsel informed the juvenile court it was going to file an additional section 388 petition requesting reunification services. Father's counsel also made an oral motion that Father be named the presumed father.
On September 23, 2016, Father filed a second section 388 petition. Father requested that family reunification services be granted, that the court authorize visitation, and vacate the section 366.26 hearing. He alleged that Mother withheld her pregnancy from him. The juvenile court ordered a hearing for October 7, 2016.
On October 3, 2016, the Department filed two addendum reports. It recommended that the section 388 petition be granted and that Father be offered reunification services and visitation. It recommended the section 366.26 hearing be vacated. The DNA test showed Father was the father of Minor. The Department recognized Father contacted them on June 2. The Department believed Minor deserved an opportunity to reunify with Father.
D. COMBINED SECTION 388 AND SECTION 366.26 HEARING
On October 7, 2016, the section 388 petition and section 366.26 hearing were heard together. Mother and Jo.G. were not present. Minor's counsel requested that the court not follow the recommendation in the Department's addendum reports. It was not in the best interests of Minor to grant reunification services to Father and delay the section 366.26 hearing. He was merely a biological father and not a presumed father.
Counsel for the de facto parents also objected to the granting of the section 388 petition. There was no declaration; only argument Father was thwarted in his attempt to assert paternity. There was no relationship between Father and Minor. It was not in Minor's best interest to have reunification services. Counsel for the de facto parents also stated that Father was Jo.G.'s brother-in-law. It was inconceivable he did not know about the pregnancy.
The juvenile court asked how Father could be considered a presumed father. Father's counsel responded under the authority of Kelsey S. he was deceived by Mother. Mother did not tell Father or the Department that he could potentially be Minor's father. Father and Mother had no contact since they had sexual relations and they were not on social media together. Father's wife received a call in June 2016 that Father may have fathered Minor. Father contacted the Department immediately. Mother took every step possible to hide Minor from Father. Father immediately took a DNA test and he was determined to be the biological father.
Counsel for the Department did note that according to the report written by the social worker, the Department did want to give Father an opportunity to be with Minor. At this stage in the proceedings, the Department did not need to prove detriment but only that it was in Minor's best interest to terminate parental rights. Counsel for the Department argued that it may not be in Minor's best interest to delay permanency on the chance that he could develop a relationship with Father. Father at this point was merely a biological father.
The juvenile court took into account the reports filed on April 14, August 10 and October 3. The second section 388 petition superseded the first one filed. Father testified in support of the section 388 petition.
Father last saw Mother in July 2014. Father had heard that Mother had her other two children taken by the Department but did not know she had a baby. They had no contact after July 2014. He had five other children; four of them resided with him. He was involved in all of their lives.
Father found out about Minor in June 2016. Father was married to A.M. D.G., who was originally considered for placement, was A.M's sister and Jo.G. was A.M.'s brother. Mother had told D.G. that Father was Minor's father; D.G. told A.M., who in turn told Father. Father immediately contacted the social worker in charge of Minor's case and requested a DNA test. He was instructed to attend the next court date scheduled for August 22. He promptly attempted to assume his parental responsibilities. If the section 388 petition was granted, he would assume full custody of Minor and could take care of him financially.
Father's wife, A.M., was leaving him because he had sex with Mother and he was seeking custody of Minor. Father wanted to be named the presumed father. Father had unprotected sex with Mother on one occasion. Mother was living with them for two months and "was doing bad on drugs." He did not think to reach out to Mother and see if she was pregnant. It was a "one-time thing" and they were not in a relationship.
Jo.G. lived in Banning; Father and A.M. also lived in Banning. Father denied he had any knowledge that D.G. had asked for placement of Minor even though she was A.M.'s sister.
Father had been friends with Jo.G. on Facebook but claimed Jo.G. deleted him as a friend. Father claimed he had not attended a family function for over one year. A.M. and Father were still living together and had not filed for divorce; she told him he had to move out if he got custody of Minor.
Father claimed he did not speak with D.G. Father saw Jo.G. at a bar in 2015 and he never mentioned that Mother had a baby. He never tried to reach out to Mother after she left his house. Father insisted Minor was more important than saving his marriage. He planned on getting a second job; his mother would provide child care.
After his testimony, Father's counsel requested that the section 366.26 hearing be vacated, that he be granted presumed father status, and that Minor be placed with him under family maintenance. In the alternative, that he be granted reunification services. Jo.G. never took a DNA test and Mother lied throughout the proceeding that Jo.G. was the only possible father. Father came forward immediately. This case was identical to Kelsey S. as Mother hid the pregnancy from him and prevented him from being a father.
Counsel for the Department argued it was not in the best interests of Minor for the section 388 petition to be granted, even though the report had recommended granting reunification services and vacating the section 366.26 hearing. Father took no action. He had a responsibility to get information from Mother. She could have been reached. She was part of his extended family. It was in Minor's best interest to terminate parental rights. He had been in the care of the same family who was going to adopt him since shortly after his birth.
Counsel for Minor argued it was inconceivable Father had no knowledge of Minor. He came forward once his wife found out about Minor. Additionally, Father testified taking custody of Minor would affect the stability of his marriage and other children.
The de facto parents argued they were the only ones who were bonded with Minor. The addendum prepared by the Department did not involve looking into the family connection or talking to A.M. and made an improper recommendation. It was in the best interest of Minor to terminate parental rights.
The juvenile court first stated, "This may well be one of the most difficult cases this court has ever heard." The court assured Father it had listened carefully to his testimony. The juvenile court noted, "It is difficult for this court to believe that with a family as intertwined relationally as this family is, that your immediate family, your wife A.M. and you, did not know that D.G. was seeking to have [Minor] placed in her home." The juvenile court "questioned" the timing of Father coming forward at the time A.M. found out he had unprotected sex with Mother.
The court further noted, "If you were thwarted, sir, in your ability to come forward on behalf of [Minor], it was in this Court's mind because you somehow, for some reason and probably a good reason probably because of your marriage and your four kids, you turned a blind eye until you couldn't turn a blind eye anymore." The court noted, however, during that time Minor was growing up. The juvenile court felt it was in Minor's best interest to deny the section 388 petition and proceed with the section 366.26 hearing. The juvenile court noted, "And, again, I'm very sorry, but having heard the testimony and the arguments, and considering the law and read the reports which have been submitted into evidence, the Court does find that there is clear and convincing evidence that it is likely that this child will be adopted."
Father argued that his parental rights should not be terminated and that the permanent plan should be guardianship. He also argued that the sibling exception applied. Further, it violated his due process rights to terminate his parental rights. The juvenile court found that the sibling exception did not apply. It terminated the parental rights of Father and Mother and freed Minor for adoption.
DISCUSSION
Father makes two claims on appeal. First, he insists the evidence established he was a presumed father pursuant to Kelsey S. Second, the juvenile court erred by determining it was in Minor's best interest not to have him named the presumed father and denying him any opportunity to preserve his familial rights.
A. PRESUMED AND/OR KELSEY S. FATHER
The evidence did not support that Father was a presumed father or that he qualified as a Kelsey S. father. "We review a juvenile court's presumed parentage determination for substantial evidence." (In re J.H. (2011) 198 Cal.App.4th 635, 646.)
Under the dependency statutes, presumed fathers have far greater rights than biological fathers. (In re Zachariah D. (1993) 6 Cal.4th 435, 448-449 (Zachariah D.).) Under Family Code section 7611, a person is presumed to be the natural parent of the child if the child was born during marriage, the presumed parent attempted to marry the child's natural mother prior to the child's birth, or the presumed parent and child's natural mother have married after birth of the child. (Id. at subds. (a)-(c).) If these are not applicable, a person can become a presumed parent if "[t]he presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." (Fam. Code, § 7611, subd. (d).) Clearly, Father did not qualify under these above requirements.
Additionally, the juvenile court properly determined that he did not qualify as a Kelsey S. father because the court did not believe he had no knowledge of Minor until June 2016. In Kelsey S., the court held that a mother cannot unilaterally "preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest." (Kelsey S., supra, 1 Cal.4th at p. 849.) Under such circumstances, "[i]f an unwed [biological] father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent." (Ibid.)
Here, the juvenile court determined Father did not promptly come forward to accept parental responsibility of Minor. Father was married to Jo.G.'s sister A.M. D.G., who was the sister of A.M. and Jo.G., had attempted to gain custody of Minor when he was first born. The juvenile court found it was inconceivable Father had no knowledge that Mother was pregnant. As noted by the juvenile court, Father did not come forward until A.M. was made aware that he had sex with Mother, and that she had a child she claimed belonged to Father. It found it was reasonable to assume that Father turned a "blind eye" to Minor to save his marriage. The juvenile court was in the best position to assess Father's credibility and determine whether his claim, that he had no knowledge of Minor until June 2016, was in fact true. "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion." (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) It was a reasonable inference from the evidence that Father did not come forward promptly to accept his parental responsibilities.
We recognize the Department had recommended that Father receive reunification services and that the section 366.26 hearing be vacated. The recommendation was based only on its determination that Father came forward promptly when he discovered he may be the father of Minor. There is no evidence that anyone in the Department interviewed Father. Again, the juvenile court was in the best position to evaluate Father's credibility when he testified in court.
"While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the father's failure to ascertain the child's existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any 'opportunity to develop that biological connection into a full and enduring relationship.'" (Zacharia D., supra, 6 Cal.4th at p. 452.)
Accordingly, since Father did not achieve presumed father status prior to the expiration of the reunification period, "[h]is only remedy, therefore, was to file a motion to modify under section 388." (Zacharia D., supra, 6 Cal.4th at p. 453.)
B. DENIAL OF SECTION 388 PETITION
"Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "'[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required." (Ibid.) It "shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction." (§ 388, subd. (a)(1).) "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
"[A] biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child's best interest would be promoted by reunification services. The rule is the same whether his paternity was concealed from him or not." (In re Vincent M. (2008) 161 Cal.App.4th 943, 947.) "When a dependency case is in permanency planning, the focus has shifted to the child's needs for permanence and stability; the reunification issue may only be revived if it is in the child's best interest." (Id. at p. 958.)
A section 388 petition is addressed to the court's discretion, and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) "The denial of a section 388 motion rarely merits reversal." (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
The juvenile court properly concluded it would not be in Minor's best interest to have the section 366.26 hearing vacated and grant reunification services to Father. Father came forward after reunification services had been terminated and at the time that the section 366.26 hearing was set. Father had no relationship with Minor. Father had unprotected sex with Mother and never inquired whether she was pregnant. Further, he expressed that if he were to be granted custody of Minor, he would be forced to move out of his home away from his four other children. He would get a second job; his mother would care for Minor. There was no information about Father's motion before the juvenile court.
On the other hand, Minor had been with the de facto parents since he was released from the hospital after his birth. He was bonded to them and was thriving in their home. They were committed to raising Minor. The de facto parents loved him and intended to provide him every opportunity in education and other activities. Although clearly not an easy decision for the juvenile court, it cannot be said that such decision was an abuse of its vast discretion.
DISPOSITION
The juvenile court's order denying Father's section 388 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.