Opinion
A159479
04-15-2020
In re J.M.K., A Person Coming Under the Juvenile Court Law. SAN FRANCISCO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.K., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JD19-3228)
M.K. (father) is the biological father of infant J.M.K. In this juvenile writ proceeding, father challenges the juvenile court's dispositional order declaring J.M.K. a juvenile court dependent, bypassing A.F. (mother) for reunification services, declining to grant reunification services to him as a mere biological father, and setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. Father claims the juvenile court erred in failing to declare him the minor's presumed father pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) prior to the conclusion of the dispositional hearing. He further challenges the sufficiency of two jurisdictional findings made by the juvenile court involving his conduct. We deny the petition.
All statutory references are the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
J.M.K. initially came to the attention of the San Francisco County Human Services Agency (Agency) in September 2019 when the Agency received a referral reporting that mother had given birth the previous day to a baby boy who had tested positive for methamphetamine and methadone. The referral further indicated that mother was homeless and that she had failed to reunify with three older children due to substance abuse issues. These children were subsequently adopted by their paternal grandparents. J.M.K. remained at the hospital and was exhibiting symptoms of withdrawal. The Agency filed a dependency petition based on these allegations.
When interviewed, mother identified father as the father of the baby, but indicated that she was also married to another person. Father had been incarcerated in the San Francisco County jail without bond since December 30, 2018 on charges of assault with force likely to cause great bodily injury, based on an attack in the Tenderloin District of San Francisco that had been captured on video. Father told the social worker that he was not sure he was the minor's father. He had "dated" mother for one month prior to his arrest but had gotten into a fight with mother's "ex-boyfriend" who had told him the baby was not father's. He stated that he would love to be the minor's father. The juvenile court ordered paternity testing for both mother's husband and for father and, in October 2019, test results established father's biological connection to the minor. That same month, father filed a declaration of paternity stating that, if he was the minor's father, he would like his son placed with the paternal grandmother.
Mother initially indicated a desire to enter residential treatment with the minor. However, her whereabouts soon became unknown and the Agency filed a due diligence declaration memorializing its efforts to locate her. According to the social worker, she had called the mother for weeks and would receive either no response, a busy signal, or a female hanging up on her.
In November 2019, the juvenile court gave the Agency the discretion to arrange visits for father if possible and safe for the minor. According to a January 2020 addendum report, a visitation application had been submitted but not yet approved by the jail. The report further indicated that the last known plea offer presented to father by the district attorney's office was eight years in prison. Father had identified the paternal grandmother and a paternal uncle as possible placements for the minor. The uncle's home had twice been assessed and was not approved due to sanitary issues. The paternal grandmother's approval was pending, as it had been complicated by the need to obtain clearances from other states where she had lived.
At the combined jurisdictional and dispositional hearing on January 23, 2020, father's attorney indicated that she was taking "the unusual step of making an oral Family Code section 7611(d) motion on behalf of father." Counsel argued that father had expressed his willingness and ability to take care of the minor through relatives throughout these proceedings, even before he was found to be the minor's biological father. She argued that he was being prejudiced as a result of his gender and requested that the court elevate his status to that of presumed father. Agency counsel objected to the oral motion based on lack of notice. He further indicated that father could not meet the requirements of subdivision (d) of Family Code section 7611 because he had never received the infant into his home. (See Fam. Code, § 7611, subd. (d) [allowing presumed parent status when the individual "receives the child into their home and openly holds out the child as their natural child"].) The juvenile court denied the oral motion without prejudice "primarily" due to lack of notice, but also because it felt it needed more information.
At the conclusion of the hearing, the juvenile court, after making minor amendments, found the allegations in the petition true and concluded that the minor was a person described by subdivisions (b), (g), and (j) of section 300. The court then declared dependency, bypassed mother for reunification services under subdivisions (b)(10) and (b)(11) of section 361.5, noted that no services were required for father, and set a permanency planning hearing for the minor pursuant to section 366.26. Father's writ petition followed.
II. DISCUSSION
A. No Error in Declining to Determine Father's Paternity Status
Father's primary argument in his writ petition is that the juvenile court erred in refusing to declare him the minor's presumed father at the January 2020 combined jurisdictional and dispositional hearing. "An unwed father's rights and duties under the Uniform Parentage Act of 1973 (UPA), adopted by our Legislature as Family Code section 7600 et seq., substantially depend on whether he is a 'presumed father' within the meaning of Family Code section 7611." (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228.) "Whether a biological father is a 'presumed father' . . . is critical to his parental rights." (Kelsey S., supra, 1 Cal.4th at p. 823.) Only presumed fathers are entitled to custody and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449, 452 (Zacharia D.).) Generally speaking, "[a] man who has neither legally married nor attempted to legally marry the mother of his child becomes a 'presumed father' under subdivision (d) of Family Code section 7611 if he both ' "receives the child into his home and openly holds out the child as his natural child." ' " (Tanis H., at p. 1228; see Fam. Code, § 7611, subd. (d).)
In Kelsey S., supra, 1 Cal.4th 816, our Supreme Court determined that the statutory distinction between natural fathers and presumed fathers is invalid under constitutional guarantees of equal protection and due process "to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities" (id. at p. 849). As Kelsey S. explains, "[t]he father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate 'a willingness himself to assume full custody of the child—not merely to block adoption by others.' [Citation.] A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Ibid.) A court "must consider whether [the father] has done all that he could reasonably do under the circumstances." (Id. at p. 850.)
Although Kelsey S. was not a dependency action, "the vast majority of appellate courts to have considered the issue have had no difficulty extending its holding to dependency proceedings." (In re M.C. (2011) 195 Cal.App.4th 197, 219 [citing cases], superseded by statute on other grounds as stated in Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 378.)
Turning to the present case, we first reject the Department's contention that father has forfeited his ability to raise this issue because his attorney failed to reference Kelsey S. in requesting presumed father status, stating only that father was seeking a paternity finding under Family Code section 7611, subdivision (d). (See In re Elijah V. (2005) 127 Cal.App.4th 576, 582 [finding forfeiture where father failed to address the Kelsey S. factors and did not asked to be designated a Kelsey S. father].) It is true that father's attorney initially referenced only the Family Code and never expressly cited Kelsey S. However, after reciting evidence supporting father's willingness and ability to take care of the child, counsel argued that father was being prejudiced based on his gender and objected on equal protection grounds. And minor's counsel expressly referenced Kelsey S., citing an appellate decision involving the refusal to afford Kelsey S. rights to an incarcerated father as "almost exactly on point." Under these circumstances, we conclude that the issue was sufficiently raised to permit appellate review.
We find no error, however, in the juvenile court's handling of father's oral request. It is essential to recognize that the juvenile court did not make a substantive determination as to father's Kelsey S. status. Rather, it denied father's oral motion without prejudice "primarily" due to a lack of notice, but also because the court needed more information. The court pointed out, for example, that it did not know how long father's incarceration would last or the ways in which father has held J.M.K. out to be his son. A court tasked with making a Kelsey S. determination is required to consider all relevant factors, and evidently there were significant omissions from the oral presentation that rendered a ruling on the motion premature. (Kelsey S., supra, 1 Cal.4th at p. 849.)
Moreover, as the parties' extensive briefing on this issue illustrates, the scope of Kelsey S. is entirely a creature of developing case law, and thus detailed explication of relevant precedent is often necessary in support of reasoned argument. Under these circumstances, we cannot fault the juvenile court for requesting a written motion so that relevant facts and argument could be marshalled by all interested parties before it made its paternity determination. (Cf. In re Bryan D. (2011) 199 Cal.App.4th 127, 135 [noting juvenile court's request for a noticed motion on presumed parent status]; City of Tulare v. Superior Court (2008) 169 Cal.App.4th 373, 383 [discussing due process implications of failing to allow for a noticed motion in the Pitchess context: " ' "The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner." ' "].)
Given this resolution, we decline to address father's argument which appears to suggest that the Kelsey S. holding should be extended to provide all biological fathers in dependency proceedings with presumed father status.
Citing In re Julia U. (1998) 64 Cal.App.4th 532, father argues that he was prejudiced by the juvenile court's failure to decide the issue of parentage prior to disposition in this case, but we find that case distinguishable. In Julia U., the appellate court found that the child welfare agency had been "dilatory in performing its obligation to locate [the minor's] natural father." (Id. at p. 542.) As a result, the court set a permanency planning hearing on the same day that the alleged father first appeared and paternity testing was ordered. (Id. at pp. 537, 543.) The court terminated all reunification services shortly thereafter. (Id. at p. 543.) Moreover, the alleged father was not assigned counsel until he was found to be the minor's biological father and was refused visitation with the minor, even after his biological connection was established. (Id. at pp. 537-538, 542-543.) The juvenile court subsequently denied the alleged father's section 388 motion and terminated parental rights. (Id. at pp. 538-539.) The appellate court concluded that the alleged father had been denied his parental rights without due process. (Id. at p. 535.)
Here, in contrast, the Agency spoke to father even before the dependency petition was filed in September 2019, quickly arranged paternity testing for both possible fathers, and filed results confirming father's biological relationship to the minor on October 24, 2019. Moreover, counsel was appointed for father in September 2019. Visitation had been authorized but had not yet been approved by the jail as of the January 2020 jurisdictional/dispositional hearing. The juvenile court and the Agency had thus satisfied their obligation to locate the minor's natural father a full three months before the dispositional hearing at which a permanency planning hearing was set.
It was father's responsibility to seek the elevation of his parental status from biological father to presumed father if he so desired. "The burden is on a biological father who asserts Kelsey S. rights to establish the factual predicate for those rights." (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679; see In re T.R. (2005) 132 Cal.App.4th 1202, 1210 [man seeking status of statutory presumed father has burden of proof].) We also note that father's trial counsel did not object to proceeding with the dispositional hearing after the juvenile court denied her motion for presumed father status and did not make an oral motion for a continuance as is permitted upon a finding of good cause. (§ 352, subd. (a)(3).) On these facts, the juvenile court's decision to move forward with disposition and set a permanency planning hearing was not an abuse of discretion.
It is true that "[t]hroughout the dependency and parental termination statutes we find the admonition to accelerate proceedings so that the child is not kept 'in limbo' any longer than necessary." (In re Emily L. (1989) 212 Cal.App.3d 734, 743.) Continuances are thus "expressly discouraged." (Ibid.) Nevertheless, a continuance may be granted pursuant to section 352 upon a showing of good cause if it is not contrary to the interests of the minor. (§ 352, subds. (a)(1) & (a)(2).)
We have no doubt that father's trial counsel will promptly file a noticed motion requesting Kelsey S. status for her client, if she has not already done so. Any decision made by the juvenile court with regard to that motion will, of course, be subject to our appellate review in the ordinary course. B. Father's Jurisdictional Claims Are Not Justiciable
At the January 2020 jurisdictional and dispositional hearing, the juvenile court found the minor to be a child described by subdivisions (b), (g), and (j) of section 300. In addition to findings detailing mother's substance abuse, chaotic lifestyle, and failure to reunify with her three older children in prior dependency proceedings, the court found true allegation (b)(5), which states that the biological father "is currently incarcerated at San Francisco County jail and his ability to care for the minor is unknown." The only other finding involving father found true by the juvenile court was the sole allegation under subdivision (g) of section 300, which provides: "The biological father, [M.K.], is currently incarcerated at San Francisco County Jail for assault with force likely to commit great bodily injury with a booking date of 12/30/2018. He has a prior felony conviction. [¶] . . . [H]e is unable to currently arrange for the care of the minor." Father asks us to review and strike the findings related to his conduct as insufficient to independently support jurisdiction over the minor.
It is well settled, however, that "the juvenile court takes jurisdiction over children, not parents." (In re I.A. (2011) 201 Cal.App.4th 1484, 1491 (I.A.).) Thus, a court need only find "that one parent's conduct has created circumstances triggering section 300 for the court to assert jurisdiction over the child." (Ibid.) "For jurisdictional purposes, it is irrelevant which parent created those circumstances." (Id. at p. 1492.) Equally settled is the doctrine of justiciability, which provides that " ' "[a] judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition." ' " (Id. at p. 1490, quoting Wilson v. L.A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 452-453.)
Applying these legal tenets, we conclude that father's jurisdictional challenge is not justiciable. "When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) This is true because no effective relief could be granted in such a situation, as jurisdiction would be established regardless of the appellate court's conclusions with respect to any such additional jurisdictional grounds. (See I.A., supra, 201 Cal.App.4th at p. 1490 ["[a]n important requirement for justiciability is the availability of 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status"].)
Here, father does not argue that the allegations under subdivisions (b) and (j) of section 300 detailing mother's conduct are factually incorrect. Nor does he challenge the precedent leading to the conclusion that his claims are not justiciable. Indeed, father acknowledges as much, but offers several reasons why we should nevertheless exercise our discretion to review the findings. (See I.A., supra, 201 Cal.App.4th at p. 1493 [a reviewing court has the discretion to consider the adequacy of additional jurisdictional grounds if it so desires].) We decline to do so.
Father first asserts that there is insufficient evidence that mother poses a current risk of harm to the minor because her whereabouts are unknown. From this premise he appears to argue that, if we reviewed the jurisdictional allegations relating to him and recognized his ability to arrange adequate care for the minor, dependency jurisdiction could be avoided entirely. We have little doubt that mother—whose entrenched substance abuse has already resulted in the adoption of her three older children and the birth of this drug-impacted minor—poses a current risk of harm to J.M.K. sufficient to support dependency jurisdiction in this case. (See In re Troy D. (1989) 215 Cal.App.3d 889, 897 ["The fact that [the minor] was diagnosed as being born under the influence of a dangerous drug is legally sufficient for the juvenile court to exercise jurisdiction."].) After all, mother would be entitled to immediate custody of the minor absent these proceedings. Even if that were not the case, father ignores the fact that, as a mere biological father, he is not entitled to custody. (Zacharia D., supra, 6 Cal.4th at pp. 448—449, 452 [only presumed fathers are entitled to custody].) We thus do not see this as a basis to review father's otherwise nonjusticiable claims.
Next, father suggests that we address his jurisdictional challenges because they are matters of public interest that are capable of repetition yet evading review. We are unpersuaded. The section 300, subdivision (b)(5) finding was not intended as a standalone basis for subdivision (b) jurisdiction in this case and the fact that it was found true—along with the multiple subdivision (b) allegations detailing mother's conduct—does not indicate that father himself ever placed the minor at substantial risk of harm. Whether the sole finding against father under subdivision (b) is sufficient on its own to support jurisdiction is a purely academic question which we doubt is of any interest to the public at large. Further, even if father's subdivision (g) challenge is of general interest to the public, it has not evaded review as father himself has capably shown by citing to the existing precedent in this area.
Finally, father argues we should consider his jurisdictional claims because they could have a tangible impact on him in this dependency proceeding, during future motion proceedings involving his Kelsey S. status, or in possible subsequent dependencies. We disagree. Father's current incarceration and his criminal history are facts that would be available in any proceeding regardless of any determination on our part with respect to jurisdictional sufficiency. The statement in allegation (b)(5) that father's ability to care for the minor was unknown to the Agency is factually true and not prejudicial to father. The only finding that could conceivably be detrimental to father is the finding that he was "unable to currently arrange for the care of the minor." Assuming this statement is factually untrue, we still do not see it as particularly harmful to him. It says more about the unavailability of an approved caretaker at a specific moment in time than about any possible shortcomings of father. On these facts, we see no meaningful prejudice we could dispel by reaching the merits of father's claims. (Compare I.A., supra, 201 Cal.App.4th at p. 1493 [concluding that reaching the merits of an otherwise nonjusticiable claim would not have "a single specific legal or practical consequence . . . either within or outside the dependency proceedings"].)
We also reject father's claim, citing People v. Ramirez (1979) 25 Cal.3d 260, 267-268, that our failure to address his jurisdictional concerns somehow implicates important dignitary interests protected by California's due process clause.
III. DISPOSITION
The petition is denied on the merits. (See § 366.26, subds. (l)(1)(C), (l)(4)(B).) Because the permanency planning hearing in this matter is set for May 13, 2020, this opinion is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Margulies, Acting P.J. /s/_________
Banke, J.