Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Super. Ct. No. 07CEJ300210-2. Jane Cardoza, Judge.
Kenneth K. Taniguchi, Public Defender, and Alex R. Merriam, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Dawson, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s orders denying him presumed father status and reunification services as to his daughter, B.P., and setting a Welfare and Institutions Code section 366.26 hearing. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner is the biological father of B.P. who, in August 2007 at the age of two months, was removed along with her half-brother, J.C., from the custody of their mother, N. because of N.’s drug use. At the time of B.P.’s birth and removal, petitioner was incarcerated in state prison and scheduled to be released in November 2008.
N. did not file a writ petition.
The Fresno County Department of Children and Family Services (department) filed a dependency petition on the children’s behalf, identifying petitioner as B.P.’s alleged father. N. told the social worker she and petitioner were not married, petitioner did not sign a declaration of paternity and petitioner was not listed on B.P.’s birth certificate. At the detention hearing, the juvenile court ordered petitioner to undergo paternity testing.
In September 2007, on the same day scheduled for the jurisdictional hearing, petitioner filed a “Statement Regarding Parentage” (JV-505), asking the court to declare him B.P.’s presumed father. In support of his request, petitioner stated he told various people, whom he identified, that B.P. is his daughter. He stated his aunt and sister provided clothing, food, and shelter for B.P. when N. was too sick to care for her and that his sister took care of B.P. when N. was not able. He also stated he and N. were engaged and attempting to have a child when B.P. was conceived. At the jurisdictional hearing, the juvenile court ordered the department to follow up on the paternity test results and continued the hearing. At the continued jurisdictional hearing in October 2007, the juvenile court adjudged J.C. and B.P. dependents of the court.
Paternity testing confirmed petitioner’s biological paternity and, at the dispositional hearing in November 2007, the juvenile court declared him B.P.’s biological father. At that same hearing, the court ordered reunification services for N. and J.C.’s father and ordered supervised visitation for petitioner but denied him reunification services. There is no evidence on this record the juvenile court adjudicated petitioner’s request to be named B.P.’s presumed father and petitioner did not appeal from the juvenile court’s dispositional orders and findings.
Over the next year, N. continued to receive reunification services. At the end of October 2008, petitioner was released from custody and visited B.P. for the first time a week later. In mid-November 2008, petitioner filed a section 388 petition, asking the juvenile court to elevate him to presumed father status, order reunification services and increase visitation. He claimed circumstances had changed since the court deemed him B.P.’s biological father in that he was released from prison and, while in prison, he completed a parenting education program and a course in conflict resolution. In addition, he claimed it would be better for B.P. if the court provided him reunification services since it was providing them to N.
The hearing on the section 388 petition was first convened in November 2008 but was continued several times. Meanwhile, in December 2008, B.P. was placed on an extended visit with N. and, in January 2009, petitioner began visiting B.P. every week for an hour. In addition, the 18-month review hearing, originally set for the end of January 2009, was continued until April 2009 and scheduled on the same day as the hearing on the section 388 petition.
The department’s position at the hearing was that the juvenile court should terminate N.’s reunification services and deny petitioner’s requests for presumed father status and reunification services. Petitioner’s position was that the juvenile court should provide reunification services for him on any of three grounds: (1) he qualified as B.P.’s presumed father under Family Code section 7611 and Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) and was therefore entitled to them; (2) he is B.P.’s biological father and the court could find that services would benefit B.P.; and/or (3) he was recently released from custody and making progress in establishing a home for B.P.
On April 22, 2009, the juvenile court conducted the combined hearing on the 18-month review of dependency and the section 388 petition. Just prior to the hearing, petitioner filed a second JV-505, asking the court to declare him B.P.’s presumed father. He stated he told his “sister, aunt, uncle, cousin[], [and] friends” that B.P. is his child and he visited B.P. and gave her food, clothes, toys and money.
At the combined hearing, the case manager testified petitioner consistently visited B.P. and, in December 2008, was referred for anger management counseling and outpatient substance abuse treatment. She believed petitioner participated in anger management and substance abuse counseling and was making progress. However, he stopped attending when she told him, in February 2009, that the county would not be paying for the services.
The case manager also testified that, in January 2009, petitioner and N. were in a relationship. Under those circumstances, she believed it would be in B.P.’s best interest to reunify with petitioner. However, she changed her mind after their relationship ended and the department recommended terminating N.’s reunification services. She also considered the lack of parent/child bond between petitioner and B.P. and petitioner’s inability to complete reunification services before the 18-month review hearing. The case worker opined B.P.’s best interest would be served by allowing her to remain with her care providers.
Following testimony and argument, the juvenile court denied petitioner’s request to be deemed B.P.’s presumed father and his section 388 petition. The court also found section 366.22, subdivision (b) inapplicable to petitioner, terminated reunification services for N. and J.C.’s father and set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
A. Presumed Father
Petitioner contends the juvenile court abused its discretion in denying him presumed father status. Assuming we apply the abuse of discretion standard to the juvenile court’s determination of presumed father status, we find no error in this case.
A difference of opinion exists as to whether to review a juvenile court’s determination of presumed father status for substantial evidence or abuse of discretion. (See Miller v. Miller (1998) 64 Cal.App.4th 111, 117-118; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650; In re Sarah C. (1992) 8 Cal.App.4th 964, 972-973; In re Kiana A. (2001) 93 Cal.App.4th 1109, 1116.)
Dependency law accords different paternity rights to a man depending upon his paternity designation. The presumed father enjoys the full array of parental rights, including reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449.) A man may attain presumed father status by satisfying any of the rebuttable presumptions of paternity set forth in Family Code section 7611. Where, as here, a man seeking presumed father status has neither married nor attempted to marry his child’s biological mother, he must prove that he openly held the child out as his natural child and physically received the child into his home. (Fam. Code, § 7611, subd. (d); Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.)
The most glaring problem for petitioner with respect to Family Code section 7611 is that he was incarcerated when B.P. was born and therefore could not receive her into his home. He acknowledges that fact but contends that the juvenile court prevented him from receiving B.P. into his home by denying him reunification services. In addition, he contends he made a full commitment to B.P. once he was released from custody by visiting her, providing for her and attempting to participate in services to reunify with her. These circumstances, he argues, compelled a finding he is B.P.’s presumed father under Kelsey S.
In Kelsey S., the California Supreme Court held that Family Code section 7611 and the related dependency statutes violate an unwed biological father's federal constitutional guarantees of equal protection and due process to the extent they allow a mother or third person to unilaterally preclude the father from attaining presumed father status after he, upon learning of his paternity, promptly came forward and demonstrated a full commitment to his parental responsibilities. (Kelsey S., supra, 1 Cal.4th at p. 849.)
In determining whether a biological father is a Kelsey S. father, the juvenile court considers his conduct before and after the child's birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses according to his ability to do so, and promptly took legal action to obtain custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849.) The court also considers his willingness to assume full custody of the child. (Ibid.) If an unwed father fails to demonstrate a full commitment to his parental responsibilities, the statutes are constitutionally sufficient as applied to him. (Id. at pp. 849-850.)
Applying the principles of Kelsey S. to these facts, petitioner argues the juvenile court, acting as a third party, precluded him from “ever” receiving B.P. into his home and thus attaining presumed father status when it denied him reunification services. There are several fundamental problems with petitioner’s argument, the most obvious being that petitioner prevented himself from receiving B.P. into his home by being incarcerated when she was born. Further, to the extent he argues the juvenile court erred in denying him services, he waived his right to challenge it. Even if he had not waived the issue, there is no evidence on this record that petitioner ever was or could be a Kelsey S. father. He did not pay pregnancy or birth expenses for B.P. nor did he take any legal action to obtain custody of her. At best, he visited her and participated in some services. We conclude, as did the juvenile court, petitioner’s efforts do not constitute the kind of full commitment to parental responsibility envisioned by Kelsey S. For that reason, we also reject petitioner’s contention he was prejudiced by the court’s delay in adjudicating his 388 petition requesting presumed father status.
B. Reunification Services
Petitioner contends the juvenile court abused its discretion in denying him reunification services as B.P.’s biological father pursuant to section 361.5, subdivision (a). We disagree.
Section 361.5, subdivision (a) provides that reunification services may be provided to a biological father who is not also a presumed father “if the court determines that the services will benefit the child.” Since the juvenile court denied petitioner reunification services in November 2007, petitioner’s section 388 petition was a request that the court modify its prior order denying him services. A parent seeking modification under section 388 must show circumstances have changed or new evidence obtained such that the proposed change would promote the best interests of the child. (§ 388, subds. (a) & (d).) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
In this case, the juvenile court found neither changed circumstances nor B.P.’s best interests warranted a modification in its order denying petitioner reunification services and we concur. B.P. was not bonded to petitioner and she was not going to be reunifying with her mother. Given her young age and established attachment to her foster family, her best interest lay in a permanent placement.
C. Section 366.22, subdivision (b)
Petitioner contends section 366.22, subdivision (b) requires the juvenile court to extend reunification services to a parent such as himself who was recently discharged from incarceration and making significant and consistent progress in establishing a safe home for the child’s return. The juvenile court concluded section 366.22, subdivision (b) applies to parents who were granted reunification services, not parents such as petitioner who were denied services. We concur.
Once the juvenile court removes a child from parental custody and orders family reunification services, it must review the case at six-month intervals. (§ 366, subd. (a)(1).) Section 366.22 governs the proceedings at the 18-month review hearing and provides in relevant part:
“If the child is not returned to a parent … at the permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to a parent … recently discharged from incarceration … and making significant and consistent progress in establishing a safe home for the child’s return, the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent.…”
Petitioner ignores the express language of the statute which refers to “additional reunification services to a parent” and argues that because he was recently released from custody, and because he completed life skills courses while in prison and consistently visited B.P., the juvenile court should have extended services to him under this statute. We conclude subdivision (b) applies to parents who were previously granted reunification services based on the clear language of the statute. Since petitioner was denied services, section 366.22, subdivision (b) did not apply to him. We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.