Opinion
E067380
11-16-2017
In re A.E., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.S., Objector and Appellant.
Lisa A. Raneri, under appointment by the Court of Appeal, for Objector and Appellant. Jean-Rene Basle, County Counsel, Kristina M. Robb, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J266785) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Lisa A. Raneri, under appointment by the Court of Appeal, for Objector and Appellant. Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
E.S. appeals from the juvenile court's finding under Family Code section 7611, subdivision (d), that he does not qualify as presumed father to A.E. A.E. was two years old as of December 14, 2016, the date of the finding. We affirm, because sufficient evidence in the record supports the court's determination.
FACTS AND PROCEDURE
In August 2016, San Bernardino County Children and Family Services (CFS) was investigating a referral regarding another family that lived in the same home as E.S., A.E. and A.E.'s mother (mother). During the investigation, the social workers generated a referral regarding A.E. as well. The home smelled strongly of feces and urine, and the carpet throughout the home had animal urine and feces on it. The dining room floor was littered with cigarette butts and had a cat litter box full of feces. The kitchen was strewn with dirty dishes and infested with ants. Mother came into the kitchen along with A.E., who was walking barefoot on the soiled carpet. Mother identified herself and told the social workers she lived in the home with her boyfriend E.S., and that E.S.'s sister and her family were the subjects of the initial referral. Marijuana was found in the home, but none of the adults would identify to whom it belonged.
A.E., mother, and E.S. lived in the living room, which was separated from the rest of the home by a curtain and wooden pieces of a crib. The room was furnished with a bed, a dresser and a television. In one corner of the room was a 4-foot pile of trash bags with unknown contents. An unlocked door connected the room with the garage, which had in it a refrigerator and a vehicle. The vehicle was completely covered with bags of possible clothing and other items in a six-foot pile. A two-foot-wide path was cleared between the door to the house and the refrigerator. The bags and other items spilled out into the driveway from the bottom of the garage door, which was bent outward and did not close all the way.
The other children in the home were interviewed. One of them stated that mother hits A.E. with her hands and shoes all over her body. The detention report indicated that unspecified "domestic violence" took place in the home. CFS took A.E. into protective custody.
E.S. was in the courtroom for the detention hearing held on August 16, 2016. When questioned by the court, E.S. stated: "I'm the mother's boyfriend. And I have been the father that she knows." A.E.'s counsel objected to E.S. remaining, so the court asked E.S. to wait outside. Upon questioning, mother told the court that A.E.'s biological father was a one-night stand, for whom she did not have a last name or any other information. The court asked about any other potential fathers, to which mother replied: "That's her dad right there that you just sent out of the courtroom. That's who she's known as daddy since day one." Mother clarified that to mean "[s]ince she was only, like, a few months old." The court indicated the social worker should interview E.S. and determine whether he was going to request designation as a presumed father. The court ordered A.E. detained and removed.
In the jurisdiction and disposition report filed on September 2, 2016, CFS recommended no reunification services for mother. For this decision, CFS relied on the following: (1) mother had her parental rights terminated to two previous children; (2) mother had not learned from that experience in that she allowed two-year-old A.E. to reside in unfit living conditions; and (3) mother used prescribed opioids and medical marijuana for the last 10 years because of a back problem, which resulted in her becoming dependent on both and diminished her ability to safely parent A.E.
E.S. and his mother appeared on September 7, 2016, for the jurisdiction and disposition hearing. E.S.'s mother asked to be evaluated for placement of A.E. The hearing was continued to October 13.
E.S. filed his application for presumed father status on October 11, 2016. In the application, he gave four reasons for the court to grant the application. First, E.S. cared for A.E. as his own biological child during an important period in her life. Second, E.S. received A.E. into his home and openly held her out to the world as his own natural child. Third, it would be in A.E.'s best interest to be returned to the one person who as acted as a father to her—A.E. calls E.S. "Daddy" or "DaDa." Fourth, the biological father has never been in A.E.'s life, and E.S. is the only father A.E. knows. In his attached declaration, E.S. made the above points, and in addition declared that his friends and family believe that A.E. is his daughter; A.E. has lived with E.S. since she was one month old; E.S. provided financially, emotionally, and physically for A.E.; A.E. is extremely bonded to E.S., possibly more so than she is to mother; A.E. is the joy of E.S.'s life, and having her out of his care has left huge hole in his heart.
E.S. and his mother again appeared on October 13, 2016, for the jurisdiction and disposition hearing and were asked to wait outside. The court continued the hearing to allow CFS to respond to the presumed father application and for mother's new retained counsel to get up to speed on the case.
CFS filed its response to E.S.'s application in an "information for the court" filed on November 3, 2016. CFS recommended denying E.S.'s request for presumed father status for the following reasons. E.S. did not protect A.E. from mother's use of drugs, whether prescribed or illicit; being around the marijuana that was found in the home; the filthy conditions in the home; and exposure to the domestic violence in the home. A.E. is nonverbal and cannot have called E.S. "Daddy" or "DaDa." E.S. failed to provide adequate living conditions and a safe environment for A.E. E.S. is mother's boyfriend, no more, and merely responded, "yeah," when asked if he was willing to care for A.E. independently of mother. The request for presumed father status appeared to be a manipulative attempt to allow mother to reunify and continue to have contact with A.E. because mother resides with E.S.
The hearing set for November 4, 2016, was continued to allow the court to appoint separate counsel for E.S. Through counsel, E.S. requested visitation with A.E., but the court denied the request after hearing from county counsel and A.E.'s counsel.
The hearing on E.S.'s application was held on December 14, 2016. E.S. appeared, along with his own parents, who introduced themselves to the court as "grandmother" and "grandfather." At the request of A.E.'s attorney, the court asked them to wait outside the courtroom. E.S. testified that he had been in A.E.'s life since she was one to one-and-one-half months old, and that he was seeing her five to six times a week as he was dating mother. During that time, E.S. would play with A.E., watch TV with her and brush her hair. He also fed her, and changed her clothes and diapers. When A.E. was six months old, she and mother moved in with E.S. at his parent's home. This is where they lived when A.E. was removed. At that time, E.S., testified, he supported A.E. and provided clothes for her. E.S. would get up with A.E. in the middle of the night when she was sick, and give her baths on a regular basis. E.S. would play with A.E. first thing when he came home from work. After mother and A.E. moved in with him, E.S. would tell people, including friends and family, that A.E. was his daughter. On his days off he would take her to the park. He would take her to the doctor to get her immunizations. E.S. was aware that mother took prescription pain medications and medical marijuana, but believed she was doing so under a doctor's care and was not over-using them. E.S.'s employer had a zero drug tolerance policy. E.S. said he was not home when A.E. was removed and "was notified of that after the fact" that the house needed to be cleaned. After A.E. was removed, E.S. paid to have new carpet installed and laid new flooring himself. The animals were now required to remain outside.
Regarding his intentions toward A.E., E.S. testified that he was still dating mother, but that A.E. was his daughter, and he would choose her over mother if it came to that. CFS called him one day as he was waking up for work, and he replied, "yeah," when asked if he would be willing to leave mother in order for A.E. to be placed with him. That was the first time he became aware that he could apply for placement of A.E. E.S. testified that no other man claimed to be A.E.'s father, and that before removal, A.E. called him "Da-da" or "Dad."
On cross-examination by mother's counsel, E.S. testified that he has three teenage children who live out of state and a five-year old child who lives locally. That child calls A.E. her sister. E.S. contacted an attorney as soon as he found out he could apply for presumed father status. On cross-examination by A.E.'s counsel, E.S. stated he was not aware the carpet in the home was covered in feces and urine, and stated that there was a full cat litter box in the dining room with some spillage. He stated there was a single cigarette butt on the dining room floor. He testified that the marijuana found in the home was in his sister and brother-in-law's room. The trash bags found in the living room where he lived with A.E. and her mother were clothing and other items that his sister was preparing to take with her as she was going to move out of the home with her family. E.S. denied that the home was a real safety hazard to two-year-old A.E., but admitted that "it could have used a little bit of work." He answered, "Yes," when asked if the social worker was lying about the condition of the home and the presence of domestic violence.
After hearing argument from counsel, the court denied E.S.'s application for presumed father status. In doing so, the court found that E.S. was in a caretaking role rather than a parental role, and that his primary attachment was a romantic one with A.E.'s mother. The court commented that E.S. did not take any actions to protect A.E. from the hazardous conditions in the home, and in fact did not believe the conditions were a safety hazard. The court recognized that E.S. holds A.E. out as his own and did take legal measures, after the dependency had begun, to apply for presumed father status. However, the court did not believe E.S.'s testimony that he would put A.E. first and leave mother if the situation warranted. The court noted that A.E. was described in the reports as nonverbal, and so doubted E.S.'s testimony that A.E. called him "Da-Da" or "Daddy."
This appeal followed.
DISCUSSION
E.S. argues the juvenile court's determination that he did not meet the qualifications to be deemed a presumed father is not supported by substantial evidence.
"A person seeking presumed parent status has the burden of demonstrating compliance with the statutory requirements by a preponderance of the evidence. [Citation.] In turn, we review the juvenile court's finding under the substantial evidence standard. [Citation.] 'We view the evidence in the light most favorable to the ruling, giving it the benefit of every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] We defer to the trial court's credibility resolutions and do not reweigh the evidence. [Citation.] If there is substantial evidence to support the ruling, it will not be disturbed on appeal even if the record can also support a different ruling.' " (In re Alexander P. (2016) 4 Cal.App.5th 475, 492.)
"A person is presumed to be the natural parent of a child if . . . : [¶] (d) The 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).) "A person requesting presumed parent status under section 7611, subdivision (d) must have a 'fully developed parental relationship' with the child. [Citation.] A 'caretaking role and/or romantic involvement with a child's parent' is not enough to qualify. [Citation.] A presumed parent must demonstrate a ' "full commitment to [parental] responsibilities—emotional, financial, and otherwise." ' [Citation.] 'The critical distinction is not the living situation but whether a parent-child relationship has been established. " '[T]he premise behind the category of presumed [parent] is that an individual . . . has demonstrated a commitment to the child and the child's welfare.' " ' " (In re M.Z. (2016) 5 Cal.App.5th 53, 63.)
Here, the record contains evidence showing that E.S. received A.E. into his home, held her out as his own child, and demonstrated a financial commitment to her. However, it also contains strong evidence that E.S. did not demonstrate a full commitment to A.E.'s welfare. E.S. claimed to have been unaware of the extent of the hazardous conditions in the home, namely the cigarette butts and the pet feces and urine on the carpeting throughout the home, that made it hazardous for A.E. to walk around barefoot in the home. In fact, E.S. in his testimony minimized the existence of the hazardous conditions, going so far as to suggest the social worker had lied about them. He did not think that the feces, urine, and cigarette butts on the carpet, or the mounds of detritus and other items in the living room and garage, were conditions that posed a hazard to a two-year-old child. Under the factors set forth in In re M.Z., supra, 5 Cal.App.5th 53, E.S. did not act in a parental role toward A.E. in that he both failed to protect her from these hazards prior to the dependency, and minimized them as a danger to her safety after the fact. Moreover, E.S.'s interactions with A.E. could easily be characterized as those of a caretaker rather than as a parent, especially because the court could view his descriptions of the interactions as suspect, given that E.S. also claimed that A.E. called him "DaDa" or "Daddy," whereas the medical report describes A.E. as having "no language." The court also had before it the information from CFS that A.E. was "non-verbal" and that CFS did not believe E.S. would leave mother and put A.E. before his romantic relationship with mother. Substantial evidence supports the court's ruling that E.S. did not establish by a preponderance of the evidence his qualification for presumed father status.
DISPOSITION
The juvenile court's ruling is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.