Opinion
E079236
02-17-2023
In re K.C. et al., Persons Coming Under the Juvenile Court Law. v. J.W., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J291709, J291710. Erin K. Alexander, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
J.W. (father) appeals from a juvenile court's denial of his request for presumed father status of A.B. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 22, 2021, the San Bernardino County Children and Family Services (CFS) received a referral alleging that J.S. (mother) had given birth to a baby boy, I.C., and both he and mother tested positive for methamphetamines. Mother was interviewed by a social worker and said she had three other children at home-K.C., A.B., and K.W. The father of I.C. and K.C. is D.C., who was out of the home during the week but lived with her on the weekends. A.B.'s father was G.B., who died in a motorcycle accident a few months before A.B. was born. The father of K.W. is father, who is now appealing the order of the juvenile court, with whom mother said she shared joint legal custody. K.W. primarily lived with father but visited mother every other weekend.
The social worker interviewed father, who said that he and mother were working on a stipulated judgment and that K.W. visited mother every other weekend. Father indicated he and mother were still married, but D.C. was her current "significant other."
On December 28, 2021, CFS filed Welfare and Institutions Code section 300 petitions on behalf of A.B., who was seven years old at the time, and the other children.The petitions alleged that they came within the provisions of section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage).
The record on appeal only contains the petitions for A.B. and K.C. However, the detention report and subsequent reports include all four children.
The court held a detention hearing on December 29, 2021, and father was present. The court noted that although father was legally married to mother when she became pregnant with I.C., he was not I.C.'s biological father; rather, D.C. was his father. Father confirmed with the court that he was not seeking presumed father status of I.C.; thus, the court declared him a nonparty as to I.C. The court ordered I.C., A.B., and K.C. detained from mother and D.C., and placed them in appropriate placements. The court removed custody of K.W. from mother and retained him in father's custody.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on January 13, 2022, recommending that I.C., K.C., and A.B. be removed from mother and D.C., and that mother and D.C. be provided with reunification services. The social worker recommended that custody of K.W. be granted to father, a custody order be issued, and the dependency with regard to him be dismissed.
The social worker interviewed father again, and he said he and mother were married on April 28, 2017, and mother filed for divorce on July 30, 2019. Father said they separated after 11 months of couples counseling. When asked about paternity, father confirmed that he was K.W.'s father.
The social worker attached a "Family Court Services Child Custody Recommending Counseling Report" from 2020 to the jurisdiction/disposition report. It indicated father requested that K.W. have no contact with mother's boyfriend, D.C., who was a registered sex offender. The report also noted that father was seeking visitation rights with mother's two children, A.B. and K.C., whom he had helped raise. Father said he "simply wants to be a part of their lives."
On January 19, 2022, father filed Judicial Council Form, form JV-505, entitled "Statement Regarding Parentage," with regard to A.B. and K.C. requesting the court find him to be their presumed father. He alleged that he started building relationships with them in November 2016, then married their mother in April 2017, when A.B. was two and one-half years old and K.C. was one and one-half years old. Thus, he started living with the children in April 2017. He only worked part-time and spent most of his time taking care of them by driving them to activities such as school, daycare, church, family events, and doctor appointments, preparing meals, feeding them, bathing them, and changing diapers. Father said he supported the children emotionally and financially. He alleged that he moved out in August 2019, but continued to watch and take care of the children even after mother filed for divorce. Father said mother and D.C. later denied him access or visitation, and he had seen the children "only a few times in passing since August 2020."
The court held a hearing on January 19, 2022, and father's counsel indicated father wanted visitation with the children. The court stated it would authorize non-relative extended family member (NREFM) visits, but would not make an order in that regard. The court indicated that it understood father may be requesting presumed father status as well and ordered CFS to assess that request.
On February 22, 2022, the social worker filed an additional information to the court report regarding father's request for presumed father status. The social worker interviewed mother, who said father had not been a part of the children's lives since 2020. She noted father's controlling behavior and stated that even after their relationship ended, he continued to follow her or show up at places where she was located. Mother stated that father sought presumed father status in family court, but was denied.
The court held a contested jurisdiction/disposition hearing on April 28, 2022. Father testified that he was requesting presumed father status of the children because he had developed a relationship with them during his marriage to their mother, and he "was [their] father during that time." Mother worked full-time, and he worked part-time, so he provided most of the childcare. He said A.B.'s biological father died when mother was pregnant with her, and he filled the role of her father. A.B. called him "dad," and father held her out as his own child. Father explained that after his relationship with mother ended, she still asked him to watch the children. However, in early to mid-2020, mother renewed her relationship with D.C. and stopped letting father see the children. Father testified that he did not directly ask for presumed father status in family court; rather, he discussed it with his attorney, and, although he did not "officially" ask the court for it, the court said it was not going to rule on his presumed father status. Father further testified that he did ask for visitation, and he received it only through sibling visitation, every other week.
The court addressed father directly and confirmed that divorce proceedings began in 2019 and were still in progress. The court asked, "And that entire time in family law you didn't ask for presumed of either of these two children?" Father said no because his attorney told him it would be a different proceeding, and father could not afford it.
During closing arguments, mother's counsel objected to father gaining presumed father status. Counsel for the children believed father previously had a positive influence on the children, but noted they no longer called him father; rather, they referred to him by his first name when interviewed by the social worker. County counsel asked the court not to grant father's request for presumed father status, arguing that under Family Codesection 7611, subdivision (c), the court must find an existing relationship with the child, and the evidence showed there had not been an ongoing, existing relationship since the middle of 2020. County counsel noted that father had an ongoing family law proceeding and never asked for presumed father status. County counsel further argued that father was a stepfather to the children and asserted that "just because someone was a step parent does not automatically mean that they are now a presumed parent to their nonbiological children...."
All further statutory references will be to the Family Code unless otherwise noted.
After hearing the testimonies and argument from counsel, the court noted that for a short period of time, mother, father, and the children existed as a family unit, and the children called him father. However, the issue was the nature of father's current, existing relationship with them. The court acknowledged that father loved the children and had their best interests at heart, but it did not believe he had an existing parental relationship with them. The court noted that they no longer called him father and that his relationship with mother ended in 2019. The court found it significant that there had been an ongoing custody dispute between father and mother for the last three years, but father did not seek presumed status or custody of the children, while he was seeking custody of his own child. The court stated this evidence showed father did not hold the children "out to be the same as his own biological child." Moreover, he had not had much contact with the children during the last two years, and there was no indication they suffered from the lack of contact. Thus, the court found father did not currently meet the qualifications of section 7611, since there was no existing parental relationship. The court added that if there was one, it would not find it detrimental to not give father presumed status with regard to K.C. since he had an involved father (D.C.) who was going to be receiving reunification services. The court also believed presumed father status could interfere with mother's ability to reunify. The court then denied father's request for presumed father status.
The court proceeded to sustain the petition, with some amendments. As to disposition, the court found father to be the presumed father of K.W. It found that continuance in mother's home was contrary to K.W.'s welfare and removed him from her custody. It then found that father was the noncustodial parent and placed K.W. with him. The court ordered the family law order filed, with joint legal custody to mother and father and sole physical custody to father. The court discharged K.W. as a dependent, dismissed his petition, and terminated jurisdiction. As to A.B., the court found her biological father, G.B., to be presumed but deceased. The court removed custody from mother and ordered her to participate in reunification services. It authorized NREFM visits, to include father, and ordered CFS to look into having those visits, as the court stated it would be healthy for the children to remain connected with father, his mother, and K.W. As to I.C. and K.C., the court removed them from the custody of mother and D.C., declared them dependents, and ordered mother and D.C. to participate in reunification services.
DISCUSSION
The Court Properly Denied Father's Request for Presumed Parent Status of A.B .
Although father requested presumed father status of both A.B. and K.C. below, he only contends the court erred in denying his request as to A.B. on appeal.
Father contends the court erred in denying his request to be found A.B.'s presumed father since substantial evidence showed he held her out as his own, even though he was not her biological father. We find no error.
A. Relevant Law
A person claiming entitlement to presumed father status bears the burden of establishing the statutory requirements by a preponderance of the evidence. (In re Alexander P. (2016) 4 Cal.App.5th 475, 492 (Alexander P.).) Section 7611, subdivision (d), provides one may qualify as a presumed parent by "receiv[ing] the child into their home and openly hold[ing] out the child as their natural child." A man attains "presumed father" status by having an "established relationship with and demonstrated commitment to the child," regardless of blood relation. (In re M.R. (2017) 7 Cal.App.5th 886, 898; see In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802 (Jerry P.) ["Presumed fatherhood, for purposes of dependency proceedings, denotes one who 'promptly comes forward and demonstrates a full commitment to his paternal responsibilities-emotional, financial, and otherwise[.]' "].)
In determining whether a person has met the statutory requirement of section 7611, "the court may consider a wide variety of factors, including the person's provision of physical and/or financial support for the child, efforts to place the person's name on the birth certificate, efforts to seek legal custody, and the breadth and unequivocal nature of the person's acknowledgement of the child as his or her own. [Citation.] No single factor is determinative; rather, the court may consider all the circumstances when deciding whether the person demonstrated a parental relationship by holding out the child as his or her own and assuming responsibility for the child by receiving the child into his or her home." (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 774 (R.M.).)
"Where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.), disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)" '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.'" (Alexander P., supra, 4 Cal.App.5th at 492.)
B. Father Failed to Meet His Burden of Proof
The court here denied father's request for presumed father status of A.B., in part because he did not have a current existing parental relationship with her. Father argues the court improperly found he was required to have a current relationship to be found a presumed father under section 7611, citing In re L.L. (2017) 13 Cal.App.5th 1302 (L.L.). L.L. held that the express language of section 7611 does not require a person seeking presumed father status to show an existing relationship with the child at the time of the court's determination of presumed father status. (L.L., at pp. 1311-1312.) Rather, a person only needs to show he met the statutory requirements "at some point" in the child's life. (Id. at p. 1312.) We note there appears to be a split of authority on this issue, as other courts have held that a parent must have an existing relationship with the child at the time of the dependency proceeding. (Id. at pp. 1311-1313; Alexander P., supra, 4 Cal.App.5th at p. 491 ["A judgment of presumed parenthood represents a finding that, at the time of entry of the judgment, the person qualified as a presumed parent"]; see also, In re D.M. (2012) 210 Cal.App.4th 541, 554 [a man seeking presumed father status "must prove that he has an existing familial relationship with the child such that his rights deserve the same level of protection as those of a biological mother"].) However, we need not resolve this split of authority.
Father had the burden of showing he was entitled to presumed father status, and the juvenile court essentially concluded he failed to meet that burden. Thus, the question on appeal is whether father's evidence was "(1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (I.W., supra, 180 Cal.App.4th at p. 1528; see also In re Raul V. (2022) 82 Cal.App.5th 290, 300 (Raul V.).) In other words, father must show the evidence compels a finding in his favor as a matter of law. (I.W., at p. 1528.) He cannot make such showing on this record.
The evidence supporting father's position that he held A.B. out as his own child was not uncontradicted and unimpeached and was not of such a character and weight as to compel a finding in his favor. The only evidence that he held A.B. out as his child was his own self-serving testimony. However, the court was not required to credit his testimony. (Raul V., supra, 82 Cal.App.5th at p. 301.) Moreover, as the court emphasized, there had been a custody dispute between father and mother for several years, and father never sought presumed status nor custody of A.B. during those proceedings, although he was seeking custody of his own child. This evidence indicated he did not hold A.B. out as his own child. Thus, although the evidence did show father took care of A.B. while he was married to mother, it would have been reasonable for the court to conclude, as county counsel argued, that father was merely a stepfather to A.B.
In sum, father failed to meet his burden to show he was entitled to presumed father status, as the evidence indicated he did not hold A.B. out as his own child. Father has not shown the evidence compels a finding in his favor. Thus, we conclude the court properly denied him presumed father status.
II. The Court Did Not Apply Section 7612, Subdivision (c)
Defendant claims the court misinterpreted section 7612, subdivision (c), and erred in applying it "to determine whether A.B. should have three parents in denying father presumed status." Section 7612, subdivision (c), provides: "In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child." We conclude that defendant's claim has no merit.
We first note, as father does, the court found that A.B.'s biological father was deceased. Thus, father was the only person requesting presumed father status of A.B., and section 7612, subdivision (c), did not apply. In any event, the record does not show that the court applied section 7612, subdivision (c), with regard to A.B.; rather, the court only discussed it with regard to K.C. The court stated it had to consider whether there was a current existing relationship between father and the children, and stated, "And then a determination, if there is, as to at least [K.C.], whether it would be detrimental not to find three presumed parents or three parents." The court concluded that father did not have an existing relationship with A.B. or K.C., and added, "If there was[,] I don't find that it would be detrimental not to find him presumed in light of the fact that [K.C.] has an involved parent ...."
Thus, contrary to father's claim, the record demonstrates the court did not apply section 7612, subdivision (c), in denying his request to be A.B.'s presumed father.
DISPOSITION
The judgment is affirmed.
We concur: MILLER Acting P. J., MENETREZ J.