Opinion
B330766
04-26-2024
In re W.S., A Person Coming Under the Juvenile Court Law. v. W.R., Defendant and Appellant. SAN LUIS OBISPO DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Dominic J. Nunneri, under appointment by the Court of Appeal, for Defendant and Appellant. Rita L. Neal, County Counsel, and Ann Duggan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County No. 22JD-00356 of San Luis Obispo, Gayle L. Peron, Judge.
Dominic J. Nunneri, under appointment by the Court of Appeal, for Defendant and Appellant.
Rita L. Neal, County Counsel, and Ann Duggan, Deputy County Counsel, for Plaintiff and Respondent.
GILBERT, P. J.
W.R. (Father) appeals an order by the juvenile court denying his modification petition requesting that the court elevate him to Kelsey S. status. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 844 (Kelsey S.).) We conclude that sufficient evidence supports the order denying the modification petition, and affirm.
This appeal concerns eight-year-old W.S., a child eligible for enrollment in the Karuk Tribe, based upon Father's tribal membership. (Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (ICWA).) W.S. became subject to Welfare and Institutions Code section 300 proceedings, along with his half-sibling S.S., when their mother R.S. (Mother) died. W.S. did not know Father who, until the dependency proceedings, was not present in W.S.'s life. The San Luis Obispo County Department of Social Services (DSS) opposed Father's modification petition and favored permanent placement of W.S. and S.S. with their adult half-sister P.S. near the Karuk Tribe in Siskiyou County. The Karuk tribe intervened in the dependency proceedings and also favors permanent placement of W.S. and S.S. with P.S.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
Mother and Father were in a relationship for eight or nine months when she learned that she was pregnant. Several days later, she left Father and moved to a community in Siskiyou County. Father was not present at W.S.'s birth and he was not listed as a parent on W.S.'s birth certificate.
On December 10, 2022, Mother died from a drug and alcohol overdose. W.S. and S.S. attempted to wake her, but she was unresponsive. No other family members were present in the home and DSS placed the children in protective custody.
On December 13, 2022, DSS filed a dependency petition pursuant to section 300, subdivisions (b)(1) and (g). The following day, the juvenile court ordered that the children be detained. At the time, DSS endeavored to locate Father in Northern California.
In response to an ICWA inquiry, the Karuk Tribe contacted DSS and reported that Father had contacted the tribe. At a January 4, 2023, scheduled jurisdiction hearing, Father was present with a representative of the Karuk Tribe and his appointed counsel. The juvenile court then set a continued jurisdiction hearing while the parties awaited paternity test results.
At a special hearing held on March 23, 2023, the juvenile court received evidence of Father's paternity test and found him to be the biological father. The Karuk Tribe also filed a notice of intervention in the dependency proceedings.
Father has five other children from a previous relationship. His children have been the subject of child welfare referrals in Siskiyou County due to concerns of Father's substance abuse, general neglect, and physical violence toward the children. At the time of the dependency proceedings concerning W.S., Father was a registered sex offender, having been convicted of a sexual offense with a minor in 2000. Father also had a pending criminal case for allegedly assaulting a person with a metal pipe in 2022.
Following a contested jurisdiction hearing on April 19, 2023, the juvenile court sustained the allegations of an amended dependency petition. On May 17 and 19, 2023, the court held a contested disposition hearing and found by a preponderance of the evidence that reunification services to Father would not benefit W.S. The court then set a permanent plan hearing.
Father's Section 388 Modification Petition
On May 18, 2023, Father filed a section 388 modification petition requesting that the juvenile court find that he is a Kelsey S. father. Father declared that Mother would not allow him to have contact with W.S. to fulfill his parental responsibilities. He claimed that Mother and her friends kept Mother's whereabouts and W.S.'s birth a secret and that he had been unable to locate her. Father asserted that he was excited to have a child with Mother and so informed family and friends before W.S.'s birth. He requested family reunification services to ensure his sobriety and stability for W.S.
On July 17, 2023, the juvenile court held a hearing regarding Father's modification petition. Father testified and a representative of the Karuk Tribe attended. The tribe represented that it joined in the position of DSS regarding placement of W.S. with P.S.
Father testified that he had dated Mother for eight or nine months when she learned of her pregnancy. He paid for her living expenses for three days until she left their home. He knew she was pregnant at the time. Father stated that he attempted to contact Mother through her friends but they refused to provide information regarding her whereabouts. Mother also blocked him from her social media and her telephone. Father added that Mother's former employer could not provide her forwarding address. He admitted receiving photographs of W.S. from his niece and Mother's friend.
Father admitted during cross-examination that he had only lived with Mother for one month before she left. He stated that he did not perform a computer search to find Mother. Father also did not seek assistance from a tribal social worker, the Siskiyou County Family Law Facilitator, or legal counsel because he did not have Mother's address.
Following testimony and argument of counsel, the juvenile court denied Father's modification petition. The court noted that it had reviewed the Kelsey S. decision as well as the testimony. It concluded that Father's efforts fell short of "establishing that he [did] all that he could reasonably have done in order to meet the requirements of Kelsey S." The court described Father's efforts as "minimal," consisting mostly of calls to Mother's friends asking her whereabouts. The court also noted that Father did not provide financial support other than the first few days of Mother's pregnancy. It declined to find that Mother had been hiding from Father.
Father appeals and contends that the juvenile court erred by not finding him to be a Kelsey S. father and thus denying the section 388 modification petition.
DISCUSSION
Father asserts that Mother thwarted his parental relationship with W.S. by "hiding" and excluding him from W.S.'s life. He points out that he acted promptly when Mother died, attended all court hearings, and wrote letters to W.S. as the juvenile court permitted.
Whether a father has established that he is entitled to presumed father status under Kelsey S. is reviewed for substantial evidence. (Adoption of Baby Boy W. (2014) 232 Cal.App.4th 438, 452.) We view all factual matters and draw all reasonable inferences in favor of the judgment or order appealed. (Ibid.) We do not evaluate witness credibility, resolve evidentiary conflicts, or reweigh the evidence. (Ibid.) We also do not substitute our decision for that of the trial court. (Id. at pp. 452453.)
A petition to change or modify a juvenile court order pursuant to section 388 must factually allege: 1) changed circumstances or new evidence to justify the requested order, and 2) the requested order is in the minor's best interests. (§ 388, subds. (a) &(c).) The petitioner bears the burden of proof on each issue by a preponderance of evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48, overruled on other grounds by In re Caden C., supra, 11 Cal.5th 614. 636, fn. 5.) On review, the appellate court reviews denial of a section 388 petition for an abuse of discretion. (In re J.T. (2014) 228 Cal.App.4th 953, 965.)
Here Father sought to elevate his status to a Kelsey S. father by way of a section 388 modification petition. The juvenile court properly denied the petition after determining that Father did not establish Kelsey S. status.
In Kelsey S., our Supreme Court considered the circumstances of a noncustodial, biological father who was not married to the mother at the time the child was conceived. The father sought to prevent the adoption of the infant in adoption proceedings. Our Supreme Court held that "[i]f an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities - emotional, financial, and otherwise - his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent." (Kelsey S., supra, 1 Cal.4th 816, 849.)
The burden is on the biological father to establish that his conduct before and after the child's birth warrants elevation to Kelsey S. status. (Adoption of H.R. (2012) 205 Cal.App.4th 455, 468.) Relevant factors include whether a father took prompt legal action to obtain custody and whether he paid pregnancy and birth expenses commensurate with his financial ability. (Ibid.) The biological father must establish that he came forward at the first opportunity to assert his parental rights. (In re M.C. (2011) 195 Cal.App.4th 197, 213, superseded by statute as stated in C.A. v. C.P. (2018) 29 Cal.App.5th 27, 35.)
Father did not establish that he took prompt legal action to obtain custody. W.S. was eight years old when Mother died and W.S. did not know Father. Father did not contact the free Family Law Facilitator or seek other assistance in locating Mother and W.S. He also did not perform a simple computer search. He did not seek legal counsel or assistance from a tribal social worker to assert his rights. The juvenile court declined to make a finding that Mother hid from Father, stating that evidence of hiding was not credible. In sum, Father failed to bear his burden of proof that he took significant steps at the first opportunity to fulfill an active parental role with W.S.
DISPOSITION
The order denying the modification petition requesting the juvenile court to elevate W.R. to Kelsey S. status is affirmed.
We concur: YEGAN, J., CODY, J.