Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County Super. Ct. No. DP-014289, Carolyn Kirkwood, Judge.
Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Robert Mueller and Paul DeQuattro, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Parties in Interest.
Law Office of Harold LaFlamme and Tina Stevens for the Minor Sherry N.
OPINION
ARONSON, J.
Rosie N. challenges an order of the juvenile court setting a hearing to select a permanent plan for 10-year-old Sherry N. under Welfare and Institutions Code, section 366.26 (.26 hearing; all further statutory references are to this code unless specified otherwise). Counsel for Sherry opposes Rosie’s petition. Rosie acknowledges she is not Sherry’s biological mother, but contends the juvenile court erred by denying her request to be named Sherry’s presumed mother. (See § 361.5.) According to Rosie, she met the criteria for presumed parenthood because she welcomed Sherry into her home and held her out to the world as her natural child. (See Fam. Code, § 7611, subd. (d).) Rosie, however, refused to cooperate with the Orange County Social Services Agency (SSA) in locating Sherry’s birth mother. Consequently, the juvenile court did not abuse its discretion in concluding the doctrine of unclean hands precluded Rosie from obtaining presumed mother status. We therefore deny the writ petition and dissolve our temporary order staying the .26 hearing.
I
FACTUAL AND PROCEDURAL BACKGROUND
Buena Park police officers arrested Rosie at a motel for assault, trespassing, and child endangerment on October 21, 2006, after she overstayed her checkout time and pepper sprayed a maid who attempted to clean her room. Upon checking in, Rosie had not advised motel personnel Sherry was with her, nor did she hold herself out as Sherry’s mother to anyone at the motel. According to motel staff, Rosie behaved strangely, as if she were on drugs. Rosie defended spraying the maid because “someone beat up my daughter and you guys don’t care,” “I don’t want to talk to you. Get out of my face.” When the police asked about the alleged assault on her daughter, Rosie became belligerent and difficult to understand. She implored the officers not to bother her but to instead “go look for the rapist.” Learning Rosie and her boyfriend Joe regularly left eight-year-old Sherry alone in motel rooms for eight or nine hours at a time, the officers took Sherry into protective custody. When she arrived at Orangewood Children’s Home, Sherry ran to the refrigerator and opened it, obviously very hungry.
Investigating officers grew to doubt Rosie’s claim Sherry had been assaulted. A police service aide took photos of the girl and did not observe any marks or bruises. A sexual assault victim examination yielded no results. The officer who interviewed Sherry noted she gave a different account each of the four times he spoke with her. Sherry did not appear scared or nervous when relating details of the alleged assault, and she admitted she would lie to protect her Rosie.
According to Sherry, Rosie and Joe brought her to California from Pennsylvania two years earlier. The trio would stay in a motel for one or two days, Rosie and Joe would leave her alone to go “driving to do something,” and then they would have to move to another motel. She did not know why. She stated mysteriously that she was afraid of social services, “lawyer boys, attorney boys and social worker boys.” Sherry first claimed she went to school in Pennsylvania, but later stated she was homeschooled “by gypsies.” Admitting she herself was a gypsy, Sherry stated, “‘I feel like a turtle who has been trapped in my shell for five years.’” Asked by the social worker why Rosie would want her to hide her gypsy heritage, Sherry said she did not know. Sherry believed she had been born in 1998. The police and the social worker eventually concluded Sherry had received no education whatsoever because the arresting officer observed no curriculum materials in her motel room and she could not read even simple words or write numerals.
Rosie made no attempt to visit Sherry when Rosie was released from jail. When the social worker tried to call Rosie’s contact number, she reached a cellular phone store where no one knew of her. The social worker concluded that, other than a few phone calls, Rosie “basically abandoned Sherry in the care of [SSA] . . . .”
Rosie eventually appeared at a social services office for an interview, where she claimed to be Sherry’s biological mother. She was unsure Joe was the father because she had intercourse with another man around the time of Sherry’s conception. According to Rosie, Sherry believed Joe was her father. Claiming “I’m not good with dates,” Rosie did not know Sherry’s birthdate, did not have her birth certificate, and could not provide the name of the hospital where she was born.
Joe does not join Rosie’s writ petition, and does not challenge the juvenile court’s order denying him presumed father status.
The social worker observed Rosie appeared to “go in and out of reality during the interview,” uttering bizarre statements such as, “It’s pretty hard for me to know my daughter’s name but I know the difference.” Rosie claimed she enrolled Sherry in “the Christian schools” because she was afraid public school teachers would molest her daughter. Rosie asked the social worker if she could simply pay a fine “to get my daughter back.” Rosie denied using drugs, but the social worker learned she subsequently left a Pasadena hospital against medical advice despite having open sores on her face and body due to a highly contagious viral infection stemming from intravenous drug use.
By late November 2006, warrants had issued for Rosie’s and Joe’s arrest on robbery allegations in Los Angeles County. The perpetrators preyed on elderly victims, tying them up and using pepper spray or knives in their attacks. Eyewitnesses described a child sitting outside in a car while the pair burglarized homes. Sherry admitted waiting in a car for Rosie and Joe while they went into houses, but she became defensive and silent when asked if they brought anything out.
The police arrested Rosie in early December and, when the social worker interviewed her in jail, she presented more lucid responses than in her earlier interview. She admitted using methamphetamine, including “in the bathroom while Sherry was watching TV.” But she denied allegations of domestic violence that included hitting Sherry, and Joe similarly denied Sherry’s account.
By late December, SSA found a foster home for Sherry, who was elated with her caretakers and their two sons. The foster parents described Sherry as a “joy to have around” and soon expressed interest in adopting her. The foster parents enrolled her in school, and the social worker described Sherry as gregarious, with a passion for learning.
In January 2007, the social worker received a call from Joe’s father, Bill B., who lived in Sparks, Nevada. He informed the social worker Sherry was “adopted.” He stated that “one day his son just called him and told him that he and Rosie had adopted a baby.” He had not discussed the process with his son, it “just happened out of the blue.”
The social worker had earlier spoken with Rosie’s mother, Paulie, who provided the name of the hospital in Dallas, Texas, where Sherry was born. After contacting the hospital, the social worker obtained Sherry’s birth certificate and learned Sherry was born in 1997, not 1998, and that her mother was Pearl Y., not Rosie.
Once the social worker obtained the birth certificate, Rosie claimed she had “nothing more to hide” and consented to another interview. She described Pearl as like “a half sister of my mother, but they weren’t really related.” According to Rosie, Pearl already had nine children when Sherry was born. Rosie claimed “horrible, horrible things would happen to” Sherry if she were raised by Pearl, but she would not elaborate, except to claim Pearl “may have done drugs.” In any event, Rosie and Joe “could not have children” and Rosie claimed she and Pearl “had things worked out at another hospital for [Rosie’s] name to be placed on Sherry’s birth certificate,” but a glitch prevented the ruse.
Rosie claimed she last saw Pearl in Dallas about a year earlier, but she refused to provide any information to the social worker to help locate her. She snapped, “Do you think I would tell you so you look like the glowing social worker to the Judge?” Rosie became increasingly agitated, threatening that if she ever got out of jail, “I will find Sherry.” Rosie grew still more hostile, so the social worker terminated the interview.
The worker then interviewed Joe at the men’s jail. He claimed he was Sherry’s father but refused to submit to court-ordered DNA testing. He also refused to provide any information that would help the social worker contact Pearl, responding simply, “I have nothing to say.”
Meanwhile, Sherry was progressing rapidly in school and “thriving in every area” with her prospective adoptive family. According to the social worker’s report, the foster parents “attend[ed] to all needs of the child and all parties seem to be very attached.” In April 2007, Sherry expressed interest in seeing Joe in jail, but still did not want to see Rosie.
Having continued the jurisdiction hearing while SSA tried to unravel Sherry’s parentage, the juvenile court finally declared Sherry a dependent child at a hearing in May 2007. Bill B. testified at the hearing that Pearl had given Sherry to his son and Rosie when she was an infant. Bill assured the court he had Pearl’s contact information and had recently tried to reach her. But when the social worker later contacted Bill to obtain a number for Pearl, he told the worker first that he had called Pearl’s husband, Tommy, and later changed his story to claim Tommy had called him from a payphone after Bill had “let the word out ‘among my people’” about the case. Bill claimed he had spoken to a “Sparky” in Houston, who alerted Tommy to contact Bill. But when the social worker requested Sparky’s contact information, Bill responded, “[Y]ou’re not going to believe this. My grand[]daughter got into the back of my truck and cut up my address book. All my numbers are gone.”
The social worker turned to directory listings for Pearl, to no avail. The worker also telephoned Rosie’s mother, Paulie, seeking information about Pearl, but when a man answered, a woman’s voice in the background yelled, “[I]t’s California,” and the line went dead. The social worker called back several times and left her contact information, but she never heard from Paulie.
On the eve of disposition hearing in July 2007, Sherry decided she was open to visiting Rosie in jail, but by the time of the hearing on July 26, no visits had taken place. Despite transportation orders, neither Rosie nor Joe appeared at hearing. Both were in custody and awaiting trial in Los Angeles on the burglary charges.
Following argument by counsel, the trial court found “insufficient evidence, credible evidence” that Rosie “held the child Sherry out to be her own natural child, and that’s what’s required.” Expressing concern over the multitude of “unanswered questions in this case,” the court labeled Rosie’s obstructionist tactics “very troubling,” finding she consistently “g[ave] conflicting information” and proved “uncooperative at times with the agency.” Determining Rosie presented her “request today with unclean hands,” the court denied her presumed mother status and reunification services based on that status. Nevertheless, the court approved funding for a psychological exam (Evid. Code, § 730) to determine what reunification services, if any, might be appropriate for Rosie. Depending on the outcome of the exam, the court observed a modification petition (§ 388) might prompt it to change the order denying reunification services. After the court set a .26 hearing, Rosie pursued this writ. We stayed the .26 hearing pending the outcome of the petition, and now turn to the merits.
II
DISCUSSION
Rosie contends the juvenile court erred by denying her presumed mother status and reunification services. California differentiates between “the rights of presumed, natural and alleged fathers,” and “‘[presumed father status ranks the highest. Only a “statutorily presumed father” is entitled to reunification services under . . . section 361.5, subdivision (a) . . . .’” (In re Mary G. (2007) 151 Cal.App.4th 184, 197.) “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.).)
Family Code section 7611 sets forth rebuttable presumptions of paternity. The pertinent provision here, subdivision (d), provides that a man is presumed to be the natural father of a child if “[h]e receives the child into his home and openly holds out the child as his natural child.” (Fam. Code, § 7611, subd. (d).) “One who claims he is entitled to presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement.” (In re T.R. (2005) 132 Cal.App.4th 1202, 1210.) A presumption arising under section 7611 is a “rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.” (Fam. Code, § 7612, subd. (a).) An “appropriate action” for rebutting the presumption is one “in which another candidate is vying for parental rights and seeks to rebut a section 7611(d) presumption in order to perfect his claim, or in which a court decides that the legal rights and obligations of parenthood should devolve upon an unwilling candidate.” (In re Nicholas H. (2002) 28 Cal.4th 56, 70 (Nicholas H.).)
“In dependency proceedings . . . the purpose of section 7611 . . . is to determine whether the alleged father has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathers — the rights to reunification services and custody of the child.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 804.) “If an individual can qualify for presumed father status based on his good deeds consistent with parental responsibilities, it follows that under certain circumstances he can be disqualified by repugnant conduct that is detrimental to the child.” (In re T.R., supra, 132 Cal.App.4th at p. 1212.)
As Rosie points out, relying on Salvador M., “The paternity presumptions are driven, not by biological paternity, but by the state’s interest in the welfare of the child and the integrity of the family. [Citation.] The familial relationship between a nonbiological father and an older child [over two years of age], resulting from years of living together in a purported parent/child relationship, is ‘considerably more palpable than the biological relationship of actual paternity’ and ‘should not be lightly dissolved.’” (Salvador M., supra, 111 Cal.App.4th at pp. 1357-1358.)
In Salvador M., the boy’s adult half-sister raised him as her own from infancy after their mother died in a car accident. The daughter breastfed the boy and, as he grew older, he continued to believe she was his mother and that her children were his siblings. The half-sister revealed the true state of affairs to school officials and adult family members but declared that, “‘to the rest of the world, Salvador is my son.’” (Salvador M., supra, 111 Cal.App.4th at p. 1356.) The trial court denied her presumed mother status based on her truthful disclosures, but the appellate court reversed, observing “the most compelling evidence” was “that eight-year-old Salvador believed appellant was his mother” and “[a]t his age, . . . would not still believe appellant was his mother unless she so represented herself.” (Id. at p. 1358.) The court concluded “for Salvador to hold on to that belief for so long must mean that appellant held Salvador out to the community as her son.” (Ibid.)
This much of Salvador M. supports Rosie’s position, since Sherry was eight years old when she was detained and apparently believed Rosie was her birth mother. But Rosie fails to address the remainder of the Salvador M. opinion. The appellate court specifically determined the dependency proceeding there was not “an appropriate action” in which to consider evidence rebutting the presumption of natural parentage because “there was no competing maternal interest and to sever this deeply rooted mother/child bond would contravene the state’s interest in maintaining the family relationship.” (Salvador M., supra, 111 Cal.App.4th at p. 1359, italics added.) Our Supreme Court has concluded the Legislature did not intend the rebuttal opportunity afforded by Family Code section 7612, subdivision (a), to apply where no man has stepped forward “vying for parental rights.” (Nicholas H., supra, 28 Cal.4th at p. 70.) The presence of a competitor is necessary as a matter of policy because otherwise “rebuttal of the section 7611(d) presumption will render the child fatherless.” (Ibid.)
Here, the trial court concluded Rosie came to her request for presumed mother status with unclean hands because she refused to cooperate with SSA in contacting Sherry’s birth mother, Pearl. Rosie claimed to have spoken with Pearl within the past year, Rosie’s mother was a half-sister or had some other undefined, close relation to Pearl that presumably could yield helpful information for finding her, Joe claimed he impregnated Pearl, and his father, Bill, claimed to have reached Pearl’s husband by telephone recently, but none would aid SSA in contacting her. “‘The [unclean hands] doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim.’ [Citation.]” (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 322.) Whether to apply the doctrine to a particular set of facts rests within the lower court’s sound discretion. (Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 447.)
Had SSA been able to locate Pearl, she would have had the opportunity to assert parental rights and, had she done so, maternity would have become a contested and therefore “‘relevant fact’” under Nicholas H., supra,28 Cal.4th at pp. 69-70, rendering the dependency proceeding an “appropriate action” for rebutting the maternity presumption Rosie sought. (Fam. Code, § 7612, subd. (a).) Rosie and her cohort worked to thwart this outcome by stonewalling SSA, and the trial court could therefore reasonably conclude she was not entitled to the presumption. (See Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 638-639 [doctrine of unclean hands prevents a party from obtaining requested relief when that party has acted inequitably or with bad faith in relation to the very relief sought].)
We recognize the purpose of the presumed parent designation is to protect the child’s interest in established familial relations and therefore the juvenile court must take care in applying the unclean hands doctrine to avoid inflicting undue harm on the child when addressing the adult’s misconduct. (See generally (In re T.R., supra,132 Cal.App.4th at p. 1209 [“Paternity presumptions are driven . . . by the state’s interest in the welfare of the child and the integrity of the family”]; In re Sabrina H. (1990) 217 Cal.App.3d 702, 708 [“The statutory purpose is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not”].)
We are satisfied the juvenile court acted within its discretion for two reasons. First, the bond between Rosie and Sherry did not appear so strong that denying reunification services initially would wound Sherry or otherwise outweigh Rosie’s unclean hands. Rosie did not attempt to see Sherry in the months before she was incarcerated and, more telling, Sherry expressed no interest in seeing Rosie for nine months after she was detained. Second, the juvenile court’s unclean hands determination did not eliminate the possibility of reunification services. As with a contempt ruling that lands the offending party in jail, Rosie held the key to unwinding her predicament: she could disclose what she knew about Pearl’s whereabouts anytime. Additionally, the juvenile court took the extra step of authorizing funding for an Evidence Code section 730 evaluation for Rosie, if she requested it, which offered potential bases for a change in the court’s order. For instance, the evaluation might demonstrate Rosie’s bond with Sherry was closer than it appeared or establish some other benefit from reunification services outweighing the court’s unclean hands finding. (See In re Zacharia D. (1993) 6 Cal.4th 435, 454-455 [party who does not attain presumed parent status before end of reunification period may still request reunification services by filing a section 388 petition based on changed circumstances].) In sum, the juvenile court did not abuse its discretion in denying Rosie presumed parent status based on the doctrine of unclean hands.
III
DISPOSITION
The petition for a writ of mandate is denied, and our previous order temporarily staying the .26 hearing is dissolved.
WE CONCUR: SILLS, P. J., IKOLA, J.