Opinion
D072435
11-08-2017
In re D.M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.W., Defendant and Appellant.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519498A) APPEAL from an order of the Superior Court of San Diego County, Michael Martindill, Judge. Reversed and remanded with directions. Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
D.W. (Father), the biological father of dependent minor D.M., appeals a juvenile court order denying him reunification services. Father contends the juvenile court was required to provide him reunification services because a court in Wisconsin determined he was D.M.'s legal father based on genetic testing. The San Diego County Health and Human Services Agency (Agency) concedes that under the full faith and credit clause of the United States Constitution, Father should be provided the same rights as a presumed father in California. Father's counsel and the Agency have stipulated to reversal and remand for the trial court to find Father a legal father with the same rights as a presumed father and determine whether he should receive reunification services. The parties have also stipulated to the immediate issuance of a remittitur. We accept the stipulation and reverse with directions.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2017, the Agency filed a petition under Welfare and Institutions Code section 300, alleging D.M.'s mother, T.M. (Mother), violently shook him and punched him in the head three times with a closed fist. D.M. was three years old at the time. The juvenile court detained D.M. in out-of-home care.
Undesignated statutory references are to the Welfare and Institutions Code.
Mother filed a parentage inquiry form stating genetic testing had determined Father was D.M.'s biological father and that a court had entered a judgment finding Father was D.M.'s father. Mother informed the court Father was incarcerated in Wisconsin. The juvenile court added Father to the petition as an alleged father.
At the jurisdiction and disposition hearing in April 2017, the juvenile court stated it had obtained information from the Wisconsin court system that Father had been adjudicated D.M.'s father and was subject to a child support order in Wisconsin. The Wisconsin court had also informed the juvenile court that Father's paternity determination was based on a genetic test. The Wisconsin court ceded jurisdiction to California.
In May 2017, the Agency recommended denying reunification services to Father under section 361.5, subdivision (e)(1), due to his lengthy incarceration. Father's counsel objected to the denial of services based on the possibility that Father would be released earlier than his expected release date in September 2018.
In June 2017, Father filed a parentage inquiry form in which he confirmed he had submitted to a genetic test in Wisconsin, that a judgment had been entered indicating he was D.M.'s father, and that the court issued an order requiring him to pay child support for D.M. The Agency had no objection to a biological father finding based on information from the Wisconsin court, but questioned whether Father met the requirements to obtain presumed father status. The juvenile court stated that based on Father's parentage inquiry form and offer of proof, it did not believe Father has satisfied the requirements of section 7611, subdivision (d), which requires a presumed parent to receive the child into his home and openly hold out the child as his natural child. The court found Father was D.M.'s biological father and entered a judgment of paternity.
Given the court's biological father finding, the Agency asked the court to find it was not in D.M.'s best interests to offer reunification services to Father. The trial court denied reunification services to Father based on a finding that services were not in D.M.'s best interests.
DISCUSSION
The full faith and credit clause of the United States Constitution requires that the judgment of another state " 'be given as much effect in the state of the forum as in the state of its rendition.' [Citation.] 'It is well settled that both the validity and the effect of a judgment are governed by the laws of the state where it is rendered. . . . Judgments rendered in another state will usually be accepted as conclusive proof of the exact rights which have been finally adjudicated thereby. [Citation.] The full faith and credit provision of the Constitution is designed to provide a method of proving the record of a judicial proceeding in one state for the express purpose of carrying out the result of that proceeding in other states.' " (In re Mary G. (2007) 151 Cal.App.4th 184, 201.)
Wisconsin law distinguishes between alleged fathers and legal fathers. (See Wis. Stat. § 767.84, subd. (1m); In re Termination of Parental Rights to Charles L. (2005) 287 Wis.2d 134, ¶¶ 4, 10 .) There are three ways to establish legal fatherhood in Wisconsin: (1) a voluntary paternity acknowledgment, (2) a court ruling determining paternity, or (3) if the mother and father get married after their child is born, the parents may sign an acknowledgment of marital child form to establish paternity. (Wisconsin Department of Children and Families, Establishing Legal Fatherhood <https://dcf.wisconsin.gov/cs/paternity/establish> [as of Oct. 25, 2017]; Wis. Stat. §§ 767.84, subd. (1m) [rebuttable presumption of paternity based on genetic test], 891.41 [presumption of paternity based on marriage], 891.405 [presumption of paternity based on voluntary paternity acknowledgment].) A " 'parent' includes a person . . . adjudicated to be the biological father." (Wis. Stat., § 48.02, subd. (13).)
Here, there was no dispute that a Wisconsin court adjudicated Father to be D.M.'s biological father based on genetic testing. Thus, Father was entitled to rights in Wisconsin as a "parent," including custody, visitation, and services. (See In re Termination of Parental Rights to Lorencio H. (2004) 273 Wis.2d 786, ¶ 17 [father met definition of parent under Wis. Stat. § 48.02, subd. (13) based on genetic test and was provided full rights as a legal parent]; see also Wis. Stat. § 48.13 [jurisdiction], 48.355 [disposition and services], 48.415 [termination of parental rights].) The United States Constitution's full faith and credit clause requires California to recognize the Wisconsin court's determination and to give it the same effect as it had in that forum.
"Unpublished decisions by the courts of other jurisdictions may be cited and considered for their persuasive value." (Brown v. Franchise Tax Bd. (1987) 197 Cal.App.3d 300, 306, fn. 6.)
Accordingly, the juvenile court must recognize Father as a legal father with the same rights as a presumed father in California and assess whether reunification services should be provided to him under section 361.5, subdivision (a), or denied to him under section 361.5, subdivision (b) or (e)(1).
Under section 361.5, subdivision (b), the juvenile court can deny services if it finds, based on clear and convincing evidence, that the parent meets specified criteria. Under section 361.5, subdivision (e)(1), the juvenile court can deny services to an incarcerated, institutionalized, or detained parent it finds, by clear and convincing evidence, that services would be detrimental to the child.
DISPOSITION
The juvenile court's order denying Father reunification services is reversed. The matter is remanded for the juvenile court to find Father is a legal father with the same rights as a presumed father and to assess whether reunification services should be provided or denied to him under section 361.5. The remittitur shall issue immediately.
IRION, J. WE CONCUR: McCONNELL, P. J. AARON, J.