Opinion
D060333 Super. Ct. No. J518130
02-02-2012
In re ANTHONY S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ROBERT S. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from findings and orders of the Superior Court of San Diego County, Carol Isackson, Judge. One appeal dismissed; orders affirmed.
Robert S. and Anita T. separately appeal following the dispositional hearing in the juvenile dependency case of their son, Anthony S. Robert contends the court erred by denying his requests for presumed father status and placement of Anthony with him. Citing In re Sade C. (1996) 13 Cal.4th 952, Anita asks this court to exercise its discretion to review the record for error. We dismiss Anita's appeal and affirm the orders.
BACKGROUND
Robert and Anita had a short relationship. When Anita told Robert she was pregnant and he was the father, Robert did not believe her and thought she merely wanted money. They had little if any contact during the pregnancy. Robert claimed he had lost Anita's telephone number and did not know how to find her.
Anthony was born in November 2008. When Anthony was three weeks old, Anita called Robert and asked him to pay for Anthony's circumcision. Robert agreed and saw Anthony at the hospital for 10 minutes. When Robert saw Anthony, he knew he was the father because Anthony looked like him. After that, Robert had little if any contact with Anthony, although Robert had Anita's telephone number.
Sometime between February and April 2011, Anita called Robert and said she was losing her home. Anthony invited Anita and Anthony to move into his home. In April, Anita and Anthony moved into Robert's home. They stayed for five weeks. In May, Anita entered residential substance abuse treatment and took Anthony with her. While she was in the treatment program, she allowed Anthony to spend one night with Robert. After Anita left the program, Anthony stayed with Robert for two nights while Anita stayed elsewhere. Robert called Child Protective Services after Anita took Anthony and drove away in Robert's truck.
In June 2011 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for two-and-one-half-year-old Anthony. The petition alleged Anita's substance abuse rendered her unable to care for Anthony and Robert had not protected Anthony. (Welf. & Inst. Code, § 300, subd. (b).) Anthony was detained in Polinsky Children's Center and then in a foster home.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
Paternity test results showed Robert was Anthony's father. On August 4, 2011, the court found that Robert was Anthony's biological father and entered a judgment of parentage. At the August 10 jurisdictional and dispositional hearing, the court entered a true finding on the petition and ordered Anthony removed from Anita's custody and placed in foster care. The court denied Robert's requests for presumed father status and placement of Anthony with him but granted him reunification services. The court gave the Agency discretion to allow full-day unsupervised visits and, with the concurrence of
Anthony's counsel, discretion to allow overnight visits and place Anthony with Robert.
The Agency requests judicial notice of two postjudgment minute orders. Anthony's appellate counsel asks us to take additional evidence, a third postjudgment minute order, and to dismiss Robert's placement contention as moot. We deny the Agency's and Anthony's appellate counsel's requests.
ROBERT'S REQUEST FOR PRESUMED FATHER STATUS
"California law provides that a man is presumed to be the father of a child if he 'receives the child into his home and openly holds out the child as his natural child.' " (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652, quoting Fam. Code, § 7611, subd. (d).) Robert had the burden of establishing presumed father status by a preponderance of evidence. (In re Spencer W., supra, at pp. 1652-1653.) On appeal we apply the substantial evidence test. "[W]e review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. [Citation.] We do not reweigh the evidence but instead examine the whole record to determine whether a reasonable trier of fact could have found for the respondent. [Citation.]" (Id. at p. 1650.)
The juvenile court found Robert did not receive Anthony into his home; rather, Anthony stayed in Robert's home because Anita was homeless. The court further found it was "questionable as to how much [Robert] was there" when Anthony was in the home; characterized Robert's testimony on that subject as "evasive;" and disbelieved Robert's testimony he saw Anthony 25 to 30 times between the date of Anthony's circumcision and April 2011. We accept the court's credibility evaluation. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Anita testified Robert was staying with his girlfriend, came home three or four times when Anita and Anthony were there and stayed overnight twice. Robert denied this, but admitted "[t]here were a couple of weeks when I wasn't [home] very much."
Although Robert was employed, he did not help Anita with prenatal care or share in pregnancy or birth expenses. (In re T.R. (2005) 132 Cal.App.4th 1202, 1211.) He did not acknowledge his fatherhood until after Anthony was born. After Anthony's birth, Robert provided minimal financial assistance and cared for Anthony only incidentally. Robert told only one person he was Anthony's father and took no legal action to obtain custody until after this case was filed. Substantial evidence supports the finding Robert was not a presumed father.
In addition to paying for the circumcision, Robert gave Anita a total of $190. He refused Anita's request for money for a party on Anthony's second birthday, and although Anita invited Robert to the party, he did not attend.
ROBERT'S REQUEST FOR PLACEMENT
Robert relies on section 361.2. That section provides upon a child's removal from the custodial parent, the court shall place the child with the noncustodial parent who requests custody, unless placement would be detrimental to the child. (§ 361.2, subd (a).) Because Robert was not a presumed father, section 361.2 is inapplicable here. (In re Zacharia D. (1993) 6 Cal.4th 435, 453-454.)
The juvenile court found it was not in Anthony's best interests to be placed with Robert. This finding was not an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
At the time of the hearing, Robert was attending parenting classes. During the one visit the social worker observed, Robert interacted with Anthony appropriately. Anthony was excited to see Robert and was teary when they parted. Robert had spent little time with Anthony, however, and was inexperienced in child care. Robert did not believe he needed help caring for Anthony while he worked in his home office, although he acknowledged a child Anthony's age needed attention "100 percent of the time."
Robert and Anita smoked marijuana in Robert's home while she and Anthony were staying there. Robert acknowledged having a 15-year history of marijuana use. He had a positive test the day Anthony was detained. Robert had been convicted of marijuana smuggling, driving under the influence of alcohol and felony disorderly conduct. Although his driver's license had been revoked and he claimed he was not driving, the social worker saw him drive away from the courthouse. Robert did not believe he had a drinking problem and apparently had not participated in substance abuse treatment. We conclude the juvenile court did not abuse its discretion by finding it was not in Anthony's best interests to be placed with Robert.
A few weeks later, Robert had a negative test.
ANITA'S APPEAL
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Anita's requests to review the record for error and to address her Anders issue. (Anders v. California (1967) 386 U.S. 738.)
Citing In re Phoenix H. (2009) 47 Cal.4th 835, Anita's counsel also asks this court to exercise its discretion to provide Anita the opportunity to file a supplemental brief in propria persona. The request is denied.
DISPOSITION
Anita's appeal is dismissed. The orders are affirmed.
MCDONALD, J. WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.