Opinion
C088784 C089091
02-18-2020
In re R.S., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. S.Z., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD238677)
S.Z., biological father (father) of the minor R.S. (minor), appeals from the juvenile court's order denying him presumed father status pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) and terminating his parental rights. (Welf. & Inst. Code, §§ 300, 366.26.) Finding no merit in father's claims, we affirm the juvenile court's orders.
Unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts and circumstances surrounding the minor's removal is unnecessary for the disposition of this appeal. Suffice it to say the minor and his mother, T.F. (mother), both tested positive for methamphetamine and opiates when the minor was born in August 2017. T.S., who had been in a relationship with mother for the past two years, was present at the minor's birth and held the minor out as his own. Mother and T.S. both stated T.S. was the minor's father. They both admitted they were addicted to drugs and were homeless but wanted to get clean. Pursuant to a safety plan with the Sacramento County Department of Child, Family, and Adult Services (Department), mother and T.S. agreed to participate in informal supervision services to treat their substance abuse while the minor was placed in the care of a nonrelated extended family member (NREFM). However, both mother and T.S. failed to consistently engage in informal services, continued to abuse substances, and tested positive for illegal substances or failed to test at all, and were eventually discharged from their respective drug treatment programs. Thereafter, they ceased contact with the Department.
The minor was placed with the NREFM on September 5, 2017.
On October 20, 2017, father filed a declaration under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in Sacramento County Family Court (the family court case) regarding the minor, who was then two months old. Father also filed, in the family court case, a petition to establish parental relationship and child custody regarding the minor pursuant to Family Code section 7630. The petition requested paternity testing to determine the issue of parentage of the minor. Father also requested legal and physical custody of the minor and reasonable visitation. Among the numerous attachments to the petition were documents establishing that T.S. was in custody from November 12, 2016, to January 24, 2017, the period during which father believed mother had become pregnant.
On October 23, 2017, father filed, in the family court case, a participant enrollment form, after which he received an endorsed copy of proof of service of the summons, declaration, and petition to be served on mother. According to the declaration of service, the petition and declaration were delivered to T.S.'s grandmother, R.C., who assured the process server that she would give the paperwork to T.S. and mother. Thereafter, T.S. texted father and asked, "What are these papers? What is this about?" Father, believing the documentation was self-explanatory, did not respond. When no response was filed to the petition, father filed a request for entry of a default judgment. On December 8, 2017, the family court denied his request, stating service was not proper and the evidence submitted did not conclusively establish he was the minor's father.
On December 15, 2017, the Department filed a dependency petition pursuant to section 300, subdivisions (b) and (j), in the juvenile court. The petition listed T.S. as the minor's presumed father.
Neither mother nor T.S. attended the detention hearing on December 19, 2017. The court ordered the minor detained, and further ordered its clerk to prepare a Judicial Council form Paternity Inquiry—Juvenile (JV-500) to determine whether paternity had been established through a superior court order or judgment or through execution of a voluntary declaration of paternity pursuant to the Family Code. The court also ordered a due diligence search for mother and T.S.
The January 2018 jurisdiction/disposition report stated the whereabouts of mother and T.S. were still unknown and there had been no contact from either party. The maternal grandmother informed the social worker that she received text messages from mother, had informed mother that the Department was searching for mother and T.S., and had recently spoken by telephone with mother. The Department concluded that, without the protection of the juvenile court, the minor would be at risk of abuse and/or neglect due to mother and T.S.'s ongoing substance abuse and failure to engage in informal supervision services, T.S.'s history of domestic violence, and T.S.'s past failed reunification with the minor's half-sibling over which parental rights were terminated.
Neither mother nor T.S. attended the jurisdiction/disposition hearing on January 16, 2018. The court sustained the petition and bypassed mother and T.S. for reunification services pursuant to section 361.5, but ordered that mother be assessed for services if she made herself available within the next six months.
Mother did not appear for the relative placement hearing on April 24, 2018. T.S. appeared in custody. He identified himself as the minor's father, presented documentation to support his claim, and listed his mailing address as the maternal grandmother's address. He also represented that although he and mother were not married at the time of the minor's birth, he was present at the minor's birth and signed a voluntary declaration of paternity, and believed his name was on the minor's birth certificate. The court found T.S. to be the presumed father of the minor. The court directed the clerk to resend a parentage inquiry form (JV-500) to the Department and ordered the Department to obtain copies of the birth certificate and the voluntary declaration of paternity for the minor. The parentage inquiry form included the minor's name and date of birth and the mother's name. The form was subsequently returned by the Department and filed on May 18, 2018, indicating there was no information or order determining parentage.
The permanency review report filed June 21, 2018, stated T.S. was the presumed father of the minor and recommended the court set the matter for a section 366.26 hearing, noting the whereabouts of mother and T.S. were unknown, they were not receiving reunification services, and neither had come forward to visit the minor. The court set the section 366.26 hearing for October 30, 2018.
On August 14, 2018, the court found mother was in custody and appointed counsel for her.
On August 21, 2018, mother made her first appearance in court, in custody, for a status hearing.
On October 5, 2018, father filed a request for notice of all hearing dates in the dependency action, and a request that the court provide him with proper addresses for all parties. Father also filed a request for an early court date or, alternatively, a continuance of the October 30, 2018 section 366.26 hearing to address his "potential biological parent status." The request stated father had been trying to claim his status as father of the minor "since he discovered the pendency of this action in August," and that father had been in contact with social worker Jason Drake and requested that the court and the parties be informed of his potential biological parent claim.
The declaration of father's attorney attached to father's request stated as follows: Father learned about the birth of the minor through a Facebook posting on August 30, 2017, and, given the timing of the minor's birth, suspected he was the biological father of the minor. Father was unaware of the dependency case until August 22, 2018, when mother, who was incarcerated, informed him of the proceedings. Father contacted the social workers involved in the case and spoke with Child Protective Services (CPS) on September 10, 2018, and informed them he was likely the minor's biological father. He was told "someone would 'get back' to him." Father spoke with social worker Drake on September 13, 2018, and was informed the adoption proceedings were already in progress, but that Drake would contact counsel for the Department. Drake stated father needed to file a paternity case with the court "but it might be too late." Father also spoke with Trina Chaudhry from Adoption East, who informed father that his status as a potential father would be discussed with counsel for the Department, that the court would perform DNA tests to determine if he was indeed the minor's father, and that the social workers would inform the court that father had come forward to claim paternity. To father's knowledge, none of these things were done. Father contacted CPS again on September 26, 2018, and was instructed to contact social worker Drake. Father contacted Drake on September 28, 2018, at which time Drake informed father he had forwarded the information to counsel for the Department. Drake also encouraged father to appear for the October 30, 2018 hearing and tell the court about his claim of parentage.
Father also filed, on October 5, 2018, a statement regarding parentage (form JV-505) requesting DNA testing to determine if he was the minor's biological parent. Father's declaration attested to the statements in his attorney's declaration and stated, among other things, that father had an intimate relationship with mother during the period the minor would have been conceived; T.S. was in jail during that period; father only learned of the minor's birth through a Facebook post; father filed a petition for paternity in the Sacramento County Superior Court on October 20, 2017, but the proof of service for the petition was not properly prepared and thus mother was never properly served with the petition; and father believed a DNA test would prove his paternity. Father's declaration also stated he was prepared to do whatever the court required of him in order to assume his role as the minor's presumed parent, including taking the minor into his home and raising the minor.
The October 2018 selection and implementation report included the minor's birth certificate, which listed T.S. as the minor's father. The report noted that father contacted the social worker on September 10, 2018, regarding his claim of paternity and his request for a DNA test, and that father was instructed to attend the section 366.26 hearing to present his information to the court.
Neither mother nor T.S. appeared for the selection and implementation hearing on October 30, 2018. Father, who was present with counsel, requested a continuance and a paternity test. The court noted the voluntary declaration of paternity showing T.S. as the father and entered that document into the record. Over the objections of the Department and counsel for the minor, the court continued the hearing and ordered the Department to facilitate genetic testing for father and assist in determining paternity.
The Department's addendum report filed November 26, 2018, stated the paternity test revealed father was indeed the biological parent of the minor. At the paternity hearing the following day, the court acknowledged receipt of the paternity results and inquired of counsel for T.S. if T.S. had any thoughts on those findings. Counsel informed the court he had not had any contact with T.S. other than an e-mail sent to T.S. with the paternity test results. In light of the test results, the parties agreed to an evidentiary hearing on the issue of paternity. The court found father to be the minor's biological father and continued the paternity hearing with the selection and implementation hearing to trail.
The addendum report filed December 4, 2018, stated the Department contacted the maternal grandmother and her roommate, A.G., both of whom had contact with father, mother, and T.S. The report noted the minor was born in A.G.'s vehicle. The maternal grandmother stated she had not had contact with father in over two years and her last contact with him was in 2016. She reported she had very little knowledge about contact between father and mother but noted that mother had stayed with father off and on over the past few years and may have stayed with father while she was pregnant. A.G. stated neither she nor the maternal grandmother knew mother was pregnant until they received a text from her on July 30, 2017, at which time mother informed them she was pregnant. A.G. reported she drove mother around to appointments during the month of August 2017 and would pick up mother and T.S. from a park or McDonalds because they were both homeless. T.S. claimed the minor was his child. A.G. stated mother said she did not want father to know she was pregnant. A.G. knew father was in love with mother and brought her things and gave her money, which mother would use to buy drugs. The Department attached family law paperwork filed by father in 2017 to the report.
Contested Paternity Hearing
The contested paternity hearing and selection and implementation hearing commenced on December 7, 2018. Mother and T.S. were absent from the paternity hearing. Father, the sole witness, testified he met mother in October 2016 when he began having intimate relations with her. They lived together from October 2016 through January 2017. In December 2016, he drove mother to Idaho to visit her son. They returned to California together after Christmas and mother lived with father until T.S. got out of jail in January 2017, at which time mother left. At that point, father had no reason to think mother was pregnant.
Father testified he helped mother fill out an application for a restraining order against T.S. in March 2017. He claimed he still had no reason to think she was pregnant at that time.
Father further testified he and mother became romantically involved again in April 2017. When T.S. went to jail, mother went to stay with father. At that time, father thought mother might be pregnant. He asked mother if she was pregnant, but mother did not answer. Father asked mother twice in May 2017 if she was pregnant. Each time, she did not answer. Father moved on to a different subject but observed that her stomach was growing. At that time, father took mother to a methadone clinic. While she was not using drugs when she was with father, it was father's belief that mother did use drugs when she was with T.S. or another boyfriend. Father served T.S. with mother's application for a restraining order by mail while T.S. was in custody.
Father testified he saw mother off and on in June 2017 when mother and T.S. were together and homeless. At that time, father could tell mother was pregnant. He also met her on July 4, 2017, and noticed her "belly is growing." When he asked her if she was pregnant, she would not give him a straight answer or would say nothing at all. He did not ask mother if she was pregnant with his baby because "she was with so many different men" so he felt it was "absurd" to ask her that question when they were not living together and she was going out with different men. Father had a very strong feeling the child was his because he calculated that she would have become pregnant when they were together in Idaho.
According to father, mother was living with T.S. in August 2017. However, father and mother got together briefly, and father noticed mother appeared to be using drugs. He did not learn about the minor's birth until later that month when he saw T.S. posting about it on Facebook. Father was bitter and upset and did not reach out to mother or T.S. at that time.
Father testified he filed his petition to establish paternity in family court in October 2017. He described his attempt to serve mother with the petition, and spoke about the family court's denial of his request for entry of default when no response was filed. Because father was under the impression he had three years to conduct a paternity test, he thought he had time to wait until the next time he saw mother to ask her about it.
The next time father saw mother was in April 2018. Father and mother were intimate, and father did not feel like it was the right time to serve her with the papers. He did, however, ask mother, "Whose child is this?" Mother responded, "No, it's his [T.S.] child. We have done the test." Father did not believe mother because T.S. was in jail when mother would have become pregnant, but he did not say anything to mother. Father asked, "Where's the baby?" Mother told him she and T.S. had a fight and "CPS was called in," so she called her mother and "we gave the child to my mother's friend" for "safekeeping." Father did not attempt to call the maternal grandmother or to ask mother the name of the friend to whom the minor was allegedly given.
Father testified he visited T.S. in custody in late April 2018 in an attempt to obtain information about the minor. T.S. claimed to be the father of the minor and said the minor was with the maternal grandmother's friend whose identity he would not divulge.
In August 2018 father went to see mother in jail and added money to her jail account. Mother again claimed the minor was T.S.'s child. Father saw mother again on August 22, 2018, after she called and asked him for a ride home from jail. In the car on the way to father's house, father asked mother if she did a test to confirm paternity. Mother said a DNA test showed T.S. was the father. Father brought mother to his home where they were intimate. After, when mother was going through her paperwork, father saw documents related to the dependency action. After spending several hours together, father dropped off mother to collect her things. He had no contact with her thereafter.
Father testified he gave his paternity documentation to the sheriff's office to serve mother. He did not attempt to serve her when he picked her up from jail because he was unsure of the process and was focused on getting his documentation put together. Father finally hired an attorney in October 2018.
On December 18, 2018, after taking the matter under submission, the court found that while father was the biological father of the minor, he did not rise to the status of a Kelsey S. father and was therefore ineligible for placement or services.
Father filed a notice of appeal of the juvenile court's December 18, 2018 orders, and a request for stay of the selection and implementation hearing.
On January 29, 2019, the court denied father's request to stay the proceedings, but continued the matter to allow father time to submit his appeal.
Selection and Implementation Hearing
At the continued hearing on February 26, 2019, the court terminated parental rights. Father filed a notice of appeal from the court's order. We granted father's request to consolidate father's appeal from the denial of his request to be declared a Kelsey S. father (case No. C088784) with his appeal from the termination of parental rights (case No. C089091).
DISCUSSION
Father contends the juvenile court erred when it found he did not rise to the status of a Kelsey S. father. He argues the court failed to consider that mother "actively and criminally" thwarted his efforts to satisfy the requirements of Kelsey S. or the effect mother's misconduct had on preventing him from forming a relationship with the minor, and failed to make a finding on the fraudulent nature of the voluntary declaration of paternity signed by mother and T.S. He further argues the court erred when it did not consider the Department's failure to identify any presumed or alleged fathers, notify those individuals, or provide those individuals with forms to assert claims of parentage. Father's claims lack merit.
"An unwed father's rights and duties under the Uniform Parentage Act of 1973 (UPA), adopted by our Legislature as Family Code section 7600 et seq., substantially depend on whether he is a 'presumed father' within the meaning of Family Code section 7611." (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228.) "Whether a biological father is a 'presumed father' . . . is critical to his parental rights." (Kelsey S., supra, 1 Cal.4th at p. 823.) Only " 'presumed fathers' " are entitled to custody and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449.)
"In order to become a 'presumed' father, a man must fall within one of several categories enumerated in Family Code section 7611." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595.) One of the ways a man can establish presumed father status is if he meets the conditions provided in Family Code section 7570. (Fam. Code, § 7611.) Family Code section 7570 and the sections that follow it address the establishment of paternity by voluntary declaration. "[A] voluntary declaration of paternity that is in compliance with all the requirements of [Family Code] section 7570 et seq. . . . entitles the father to presumed father status in dependency proceedings." (In re Liam L. (2000) 84 Cal.App.4th 739, 747; see In re Raphael P. (2002) 97 Cal.App.4th 716, 722-723.) Unless rescinded or set aside, a voluntary declaration of paternity has the same force and effect as a judgment of paternity issued by a court of competent jurisdiction. (Former Fam. Code, § 7573, subd. (a); Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1132.) A voluntary declaration of paternity can, however, be set aside if the declarant is found not to be the child's father, or due to mistake, inadvertence, excusable neglect, or fraud. (In re William K. (2008) 161 Cal.App.4th 1, 9-10.)
It is undisputed that father is the biological father of the minor. It is also undisputed that he was not present at the minor's birth and did not sign a voluntary declaration of paternity. Where, as here, a biological father does not fulfill the statutory criteria to qualify as a presumed father, he may nevertheless attain parental rights equal to those of the mother by showing he promptly stepped forward to assume full parental responsibilities for the child's well-being, including a financial, emotional or other commitment; the child's mother or a third party prevented him from assuming his parental responsibilities or physically receiving the child into his home; and he demonstrated a willingness to assume full custody of the child. (In re Jason J. (2009) 175 Cal.App.4th 922, 932; In re D.M. (2012) 210 Cal.App.4th 541, 545.) Such an individual is often referred to as a Kelsey S. father. (Kelsey S., supra, 1 Cal.4th at p. 849.)
Here, the record supports the court's determination that father did not qualify as a Kelsey S. father.
Father testified he met mother and began having an intimate relationship with her in October 2016. They were together between October 2016 and early January 2017, the period during which mother apparently became pregnant. Father testified he had no reason to think mother was pregnant in January 2017 after she left him to be with T.S., or in March 2017 when he helped her fill out the application for the restraining order against T.S. However, in April 2017 when he and mother resumed their intimate relationship, he suspected she was pregnant. The following month, he observed her stomach was growing and asked her if she was pregnant. But, when she refused to answer, he moved on to a different subject. Father testified he could tell mother was pregnant when he saw her in June 2017 and noticed her "belly [was] growing" in July 2017. At that time, he had a very strong feeling the child was his based on his calculation of when mother would have conceived. Yet, when he asked her again if she was pregnant and she would not give him a straight answer, he did not ask her if the child was his because "she was with so many different men" so he felt it was "absurd" to ask her the question. Eventually, he learned about the birth of the minor from a Facebook post. Even then, father testified, he did not reach out to mother or T.S. because he was bitter and upset. Father consistently prioritized maintaining his intimate relationship with mother over obtaining information about the minor.
As the juvenile court noted, father took reasonably prompt legal action when he filed his petition to establish paternity in family court in October 2017. However, his efforts thereafter stalled when, rather than seeking legal advice in that regard, he attempted to serve mother by having the petition delivered to T.S.'s grandmother, who assured the process server she would pass the paperwork onto T.S. and mother. Then, when T.S. texted him asking about the paperwork, father elected not to respond. When mother did not file a response to the petition, father requested entry of a default judgment. The family court denied the request in December 2017 because service was improper and the evidence was insufficient to establish paternity. Despite having that information, father failed to seek legal counsel to ensure proper service and timely disposition of his paternity petition.
Father also elected not to contact mother and chose instead to wait to attempt proper service on her until the next time he saw her, believing he had three years to establish paternity. Four months passed before he met mother again in April 2018, at which time he was intimate with mother but decided not to serve her with the paternity petition because he felt it was not the right time. He learned from mother that the minor was in the care of the maternal grandmother's friend, but did not object or assert his desire to be involved in the minor's life. He subsequently visited T.S. in jail and attempted to obtain information about the minor with little success, but he did not ask mother to identify the friend nor did he attempt to call the maternal grandmother.
Father had additional opportunities to serve mother with the paternity petition in August 2018 when he went to see her in jail and gave her a ride home when she was released. He later testified he did not serve her then because he was unsure of the process and was focused on getting his documentation together. Instead, he took mother to his home where they were intimate. After spending several hours together, during which he learned about the pending dependency proceeding, he dropped mother off and had no contact with her thereafter. Father finally gave his paternity documentation to the sheriff's office to serve mother, and finally hired an attorney in October 2018, some 14 months after the minor was born.
Father claims the court's criticism of his failure to serve mother with the paternity action was faulty because it was speculative whether mother would have responded and, in any event, the court could not establish paternity without a DNA test so serving mother would have been a futile act. He further speculates that it would have been fruitless to contact the maternal grandmother to obtain information given her hostility toward him and her complicity in mother's attempts to prevent him from parenting the minor. In assessing whether a juvenile court erred and whether that error was harmless, we do not engage in speculation. Any determination of error must be made on the basis of the evidence before us. (Coy v. Iowa (1988) 487 U.S. 1012, 1021-1022 [101 L.Ed.2d 857, 867]; see People v. Bolin (1998) 18 Cal.4th 297, 334; In re J.N. (2006) 138 Cal.App.4th 450, 461.)
Father further claims he should not have been faulted for failing to press mother on the issue of pregnancy without some strategy or mechanism to otherwise compel her to provide him with information. As previously discussed, father's attempts to obtain information from mother were inadequate. Father had numerous opportunities to obtain information from mother but did not push the issue for various reasons despite the fact that he spent time with her and was intimate with her on many occasions prior to and after the birth of the minor. It is true that mother was either evasive about being pregnant or claimed T.S. was the father. Yet, father admitted that at a certain point prior to the minor's birth, he did not believe mother and suspected the child was his. Indeed, he calculated the date of conception to a time when he was intimate with mother and T.S. was in custody. Nevertheless, father's priority was being with mother and maintaining his intimate relationship with her.
There is substantial evidence in the record to support the juvenile court's finding that father "did not pursue [the] matter in a manner reasonably calculated to promptly obtain full custody of the [minor]."
Father contends the juvenile court failed to assess father's conduct in light of evidence of the conduct of mother and other third parties. For example, he argues he cannot be faulted for failing to pay mother's pregnancy and birth-related expenses when mother received no prenatal care, hid from him the fact that she was pregnant and instructed others to do the same, and lied to him about how far along she was during the pregnancy. He claims, without any citation to the record, that the evidence showed he "would have been willing to pay for and participate in prenatal and delivery costs." We are not persuaded.
As referenced in the court's written order after the contested paternity hearing, the court considered the reports submitted by the Department (which included, among other things, evidence of mother's conduct, including her refusal to answer questions about whether she was pregnant and by whom and her apparent misrepresentations in that regard), documentation submitted by father (including his four-page chronology of events), and father's testimony at the hearing. Despite that evidence, the record supports the court's finding that there was no evidence offered by any party that father "accompanied [mother] to prenatal appointments, paid for prenatal care, or contributed to birth-related expenses."
To father's credit, he took mother to a methadone clinic at one point when he determined she was using drugs. He also added money to her jail account and, according to the maternal grandmother's friend, often gave mother gifts which she apparently then sold for drugs. As the court noted, there was evidence father provided mother financial and emotional support during the periods that they lived together. However, there was "little discussion" in father's testimony about the extent to which father inquired about the prenatal care and needs of mother and her unborn child during the period between father learning about mother's pregnancy and the minor's birth. Contrary to father's claim (asserted without citation to the record) that the evidence showed he "would have been willing to pay for and participate in prenatal and delivery costs," nothing in the record suggests he ever inquired about prenatal medical care, encouraged mother to seek such care despite her stonewalling and denials, or otherwise attempted to provide financially for prenatal or postnatal costs.
Regarding whether father publicly acknowledged the minor as his own, father argues mother lied when she signed the voluntary declaration of paternity by stating T.S. was the only possible father of the minor despite the fact that T.S. was incarcerated at the time of conception, and T.S. lied when he signed the declaration despite knowing mother was living with father at the time of conception. He further argues that both mother and T.S. lied to him by claiming T.S. was the father and claiming DNA tests had been done to confirm that fact. Father's argument is misplaced. There can be little doubt, from a review of the record, that mother and T.S. claimed T.S. was the biological parent of the minor. Notwithstanding those facts, father made clear that, at a certain point prior to the minor's birth, father did not believe mother or T.S. and knew the minor was his child. Yet, there is nothing in the record, nor does father point to any evidence here, that demonstrates father ever publicly acknowledged the minor was his child, either to mother, or T.S., or the maternal grandmother, or anyone else. Even when he filed a paternity petition several months after the minor was born, he did not serve mother with it despite several opportunities, and he never asserted to mother or T.S. his belief that he was the father of the minor.
Father claims the court, after learning T.S. signed the voluntary declaration of paternity, failed to ask whether mother was cohabitating with anyone when the minor was conceived as mandated by section 316.2, subdivision (a). Section 316.2, subdivision (a) provides in part that, at the detention hearing or as soon thereafter as practicable, the juvenile court "shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers." The presence of a man claiming to be the minor's father "shall not relieve the court of its duty of inquiry." That section further provides that the court's inquiry shall include, among other things, "[w]hether the mother was cohabitating with a man at the time of conception or birth of the child." (§ 316.2, subd. (a)(3).)
Here, mother and T.S. failed to attend any of the hearings prior to the April 24, 2018 relative placement hearing, so there was no opportunity to inquire about potential fathers. Prior thereto, the court established jurisdiction over the minor and bypassed reunification services to mother and T.S. At the relative placement hearing, T.S. claimed he was the minor's father, was present at the minor's birth, and signed a voluntary declaration of paternity, and believed his name was on the minor's birth certificate. Based on those representations, the court found T.S. to be the presumed father of the minor and ordered the Department to complete a parentage inquiry (form JV-500) and obtain copies of the birth certificate and the voluntary declaration of paternity signed by T.S. The Department's subsequent report confirmed T.S. was named on the birth certificate and that there was no other order determining parentage.
Section 316.2 requires the juvenile court to inquire "of the mother" or "any other appropriate person" to identify all presumed or alleged fathers. (§ 316.2, subd. (a).) Because mother did not appear in the case until mid-August 2018, the court could not make a section 316.2 inquiry regarding the identity of any potential fathers. By the time she did appear, paternity had already been established and the minor had been in out-of-home placement for approximately one year. Indeed, neither the Department nor the court had reason to suspect the minor had another parent until well into the dependency proceedings when father contacted the Department in September 2018 and made his first court appearance one month later. Until that point, the Department had verified T.S. signed the voluntary declaration of paternity and was on the minor's birth certificate, both mother and T.S. stated they had been in a relationship for some time prior to the minor's birth, both identified T.S. as the father, and both had engaged in informal services prior to the filing of the dependency petition and were eventually bypassed for reunification services after the petition was filed.
We reject father's argument that the Department should have "checked the family court filings before filing its [dependency] petition" to determine if T.S. was the only known father. While section 316.2 places on the court a duty of inquiry regarding the identity of any potential fathers, we know of no authority, nor does father cite to any, requiring the Department to search family court filings to determine the existence of any alleged father.
Finally, father claims the court should have set aside the voluntary declaration of paternity signed by T.S. based on fraud and vacated its finding that T.S. was the minor's presumed father. A voluntary declaration of paternity may be set aside if the declarant is found not to be the child's father, or due to mistake, inadvertence, excusable neglect, or fraud. (Former Fam. Code, § 7575, subd. (b)(1); In re William K., supra, 161 Cal.App.4th at pp. 9-10.) Additionally, "an equitable collateral attack on the [voluntary declaration of paternity] is available on the grounds of extrinsic fraud. (William K., at p. 10.) Former Family Code section 7575, subdivision (b) further provides that, where, as here, the declarant is found not to be the genetic parent of the minor, "the court may set aside the voluntary declaration of paternity unless the court determines that denial of the action to set aside the voluntary declaration of paternity is in the best interest of the child" (italics added) after considering all of the following factors: the minor's age; the length of time since the declaration was executed; the nature, duration, and quality of the relationship, if any, between the declarant and the minor; the request of the declarant that the parent-child relationship continue; notice by the biological father that he does not oppose preservation of the relationship between the declarant and the child; "the benefit or detriment to the child in establishing the biological parentage of the child"; whether the declarant's conduct impaired the ability to ascertain the identity of, or get support from, the biological father; and any additional factors deemed relevant to the court's determination of the best interest of the minor. (Former Fam. Code, § 7575, subd. (b)(1).)
As a preliminary matter, we note there was no finding in the juvenile court, nor did father request one, that the voluntary declaration of paternity was fraudulent and should be set aside as such. As the juvenile court noted in its written ruling, while there was evidence in the record that mother kept the fact that she was pregnant from father, the record does not reveal why mother did so or confirm that she knew father was the minor's biological parent. In any event, even assuming the conduct of mother and T.S. supported an order setting aside the declaration, the court was nonetheless required to consider whether doing so was in the minor's best interest. The minor had been living in the home of the same NREFM for approximately one year and was doing well. He had no relationship with mother or T.S., both of whom had been bypassed for reunification services. As discussed at length above, independent of the mother's evasiveness regarding her pregnancy and her claims that T.S. was the minor's biological parent, father failed to act diligently on his belief that he was the minor's biological father and, as a result, had no relationship with the minor either. Thus, there was significant evidence in the record to support the conclusion that setting aside the voluntary declaration of paternity on the eve of the section 366.26 hearing was not in the minor's best interest.
There was sufficient evidence to support the juvenile court's finding that father did not meet the criteria set forth in Kelsey S.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
MAURO, J.