Opinion
F062778
02-07-2012
In re DEVIN P., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. KRISTI R., et al., Defendants and Respondents, DONNIE M., Appellant.
Rebecca A. Roberson for Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 516056)
OPINION
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Rebecca A. Roberson for Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendants and Respondents.
The juvenile court detained eight-year-old Devin P. and his two younger half-siblings (collectively the children) after the children's mother, Kristi R. (mother), who had been undergoing drug treatment, relapsed and became homeless. Devin had been living with his maternal great-uncle Donnie M., who had cared for Devin since he was an infant but had never obtained legal guardianship. During dependency proceedings, the juvenile court denied Donnie's motion to be declared Devin's presumed father or, in the alternative, his legal guardian. Donnie appeals, contending the juvenile court erred in denying the motion. Finding no merit to his contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The children came to the attention of the Stanislaus County Community Services Agency (Agency) in April 2010, when the Agency received a referral that mother and the youngest child tested positive for methamphetamine at birth. It was reported that mother was living at her Uncle Donnie's place. Donnie told the social worker that he had been taking care of Devin since he was three months old and mother had signed a paper giving him permission to care for Devin. When asked if he had guardianship of Devin, Donnie responded that he didn't know he had to file for guardianship and he would do so the following day. Mother agreed to voluntary family maintenance services, which she received until January 2011, when the case was closed due to her non-compliance. During this time, Devin remained with Donnie, while the two younger children were informally placed with a friend.
In February 2011, the Agency received a referral that mother was homeless, had relapsed and wanted treatment. Donnie had not filed for legal guardianship of Devin. He told a social worker, who called him on March 2, that he had the paperwork but did not have the money to file for guardianship as he was in between residences. Donnie said he would file the paperwork right away, as he did not want the Agency to be involved and possibly take Devin away from him. The following day, mother's probation officer informed the Agency that she was being violated on probation and could serve jail time. A bench warrant was issued for mother's arrest after she failed to appear for a court hearing on March 7.
All further dates are to the year 2011, unless otherwise stated.
On the morning of March 9, two social workers interviewed Devin at his school. Devin said he lived with his uncle Donnie, but would visit mother and spend time at her house, and his father was in prison. Later that morning, the social workers went to Donnie's address for a home visit. Donnie came out of a small size shed that appeared to be a dwelling. Donnie stated that Devin slept in a trailer, not the shed, and he had purchased a motor home in which he planned on living. Donnie had not filed the guardianship paperwork. The social workers took all three children into protective custody after mother filed a protective custody warrant waiver. A social worker later explained to Donnie that Devin was taken into protective custody because there was no legal guardianship, and there were concerns about them living in the shed and about Donnie's criminal history.
On March 11, the Agency filed a dependency petition alleging the children came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (g). The children were detained. Mother told social workers that Rex P. had signed a paternity declaration at Devin's birth and paid child support, although he had not maintained an ongoing relationship with Devin. This was later confirmed by a parentage inquiry, which revealed that Rex, whose name is on Devin's birth certificate, had been established as Devin's parent by voluntary declaration within a month of Devin's birth. Mother claimed that Billy E., who had been in prison most of Devin's life, was Devin's biological father. Mother stated there were no other possible fathers for Devin. Donnie, who wanted Devin returned to his care, reported that he was the only father Devin had known, as he had cared for Devin since birth, he considered Devin his son, and he held him out to the community as his son. Donnie claimed he wanted Devin to call him "Uncle Donnie" because Billy is Devin's true biological father.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
In a report prepared for the jurisdictional and dispositional hearings, the social worker stated she would not object to Donnie being named Devin's presumed father under Family Code section 7611, subdivision (d), due to the "father role" he had assumed with Devin and their strong emotional connection. The social worker, however, believed it would not be safe to place Devin in Donnie's care because Donnie did not have appropriate housing, the motor home Donnie had planned on living in lacked basic necessities, Donnie tested positive for marijuana and other drugs, and he appeared to have limited ability to provide financially for Devin.
At the May 25 continued jurisdiction and disposition hearing, Donnie's attorney, who the court had appointed at the detention hearing to represent him, stated that although Donnie did not "meet the criteria of holding the child out as his natural child," his position was that he is Devin's presumed father, and the cases "seem[ed] to indicate" the court had discretion to find him the presumed father. The juvenile court directed her to file points and authorities prior to the next hearing, which the court set for June 16. Rex's attorney informed the court she would be filing a formal motion for genetic testing and to set aside the voluntary declaration of paternity.
On June 7, the Agency filed an addendum report regarding additional research into Donnie's relationship with Devin. The social worker obtained an October 21, 2010 application for benefits on which Donnie listed his relationship to Devin as great-uncle, and learned that Donnie had told the staff at Devin's school that he was Devin's uncle. The social worker also noted that during a prior court hearing at which Billy was present, Devin was very focused on Billy and talked about him being his father. Based on this, the social worker believed Devin considered Billy his father.
At the June 16 continued jurisdiction and disposition hearing, the court first addressed Rex's motion for genetic testing and to set aside the voluntary declaration of paternity, taking the matter under submission after hearing argument of counsel. The court then addressed the issue of Donnie's status. In points and authorities filed that day, Donnie's attorney argued that Donnie should be named Devin's presumed father under Family Code section 7611, subdivision (d), as Donnie took Devin into his home from birth and loved, nurtured and cared for him his entire life. While the attorney recognized that Donnie told Devin who his biological father was and did not attempt to deceive Devin into believing he was Devin's biological father, she asserted he was entitled to presumed father status because he took Devin into his home and treated him as if he were his son. In the alternative, Donnie's attorney argued that despite Donnie's failure to obtain legal guardianship of Devin, the juvenile court should recognize Donnie as Devin's guardian and provide him reunification services under section 366.3, subdivision (b), as mother had given Donnie written permission for full custody and control of Devin, Devin's school recognized Donnie as Devin's guardian, and Donnie had been the only parental figure in Devin's life.
County Counsel orally argued the Agency opposed Donnie being declared Devin's presumed father, as Donnie held himself out to be Devin's uncle, not his father, and Devin considered Donnie to be his uncle, and there was no case law applying these facts in favor of paternity. County Counsel further argued there was no basis to consider Donnie to be Devin's legal guardian, as he never applied for legal guardianship despite being advised to do so, and in order to receive reunification services, he must be a legal guardian and not merely a caretaker. County Counsel further noted the Agency would continue to foster a relationship between Donnie and Devin. The children's attorney also opposed Donnie's request for presumed father status.
Donnie's attorney did not present any testimony on the issue of paternity. Instead, she argued that Donnie had been acting as Devin's father and Devin was extremely bonded to Donnie. She further argued that Family Code section 7611, subdivision (d) does not require that the child call the parent "dad," and Devin's "heart is with Uncle Donnie," which is where he knows his home is. Finally, she asserted that it would be "an absolute travesty" for Donnie not to receive reunification services to get Devin back into his home.
After County Counsel and the children's attorney reiterated their opposition to Donnie's motion, the court asked Donnie's attorney if there was anything else she wanted to submit to the court on this issue. Donnie's attorney responded: "No, Your Honor. I would submit on my argument today and in my points and authorities."
The court immediately ruled on the motion, explaining that while there was no doubt in its mind that Devin was very important to Donnie, his attorney was "asking that the Court not follow the letter of the law," and according to the law, while Donnie might be a de facto parent by providing day-to-day care for Devin, to elevate him to presumed father status he had to hold himself out as Devin's father, which he had not done, as there was no testimony to that effect and he instead held himself out as Devin's uncle or great-uncle. Absent an acknowledgment of paternity, Donnie could not be Devin's presumed father. The court further noted Rex had filed a voluntarily declaration of paternity, which made him the presumed father. The court recognized that emotionally Donnie had been a father figure, but the court "has to follow the law, and I simply, as difficult as it is, I cannot find that he is the presumed father, and therefore presumed father status is denied to [Donnie]."
The court advised Donnie of his appellate rights. Donnie then spoke up and said: "Do I get to say anything here?" The court replied "No," and explained that while he could plead with the court, it was following the law. Donnie responded that he understood the court's point. Donnie's attorney asked if the court was going to rule on the request to name him guardian. The court responded that it did not have any way of naming him guardian since he had not obtained guardianship. Donnie's attorney acknowledged there was no legal guardianship. The court explained that while he is a de facto parent, as a de facto parent he was not entitled to reunification services. County Counsel pointed out that she was not aware of any request for de facto parent status. Donnie's attorney stated that while he might request de facto parent status in the future, she had not made such a request. The court terminated Donnie's attorney's appointment as counsel for further proceedings below, as he was not a party to the proceedings. This appeal followed.
DISCUSSION
Presumed Father Status
Donnie contends the juvenile court erred when it denied him presumed father status. "In dependency cases, 'fathers' are divided into several categories, including natural and presumed. [Citation.] A natural father is one who has been determined to be the child's biological father. [Citation.] '"Presumed fatherhood, for purposes of dependency proceedings, denotes one who 'promptly comes forward and demonstrates a full commitment to . . . paternal responsibilities — emotional, financial, and otherwise[.]'"' [Citation.] 'A natural father can be a presumed father, but is not necessarily one; and a presumed father can be a natural father, but is not necessarily one.' [Citation.] A presumed father is entitled to reunification services and custody of the child." (In re Jose C. (2010) 188 Cal.App.4th 147, 161-162, fn. omitted (Jose C.).)
A man may obtain presumed father status in a dependency case by meeting conditions described in Family Code section 7611. (Jose C., supra, 188 Cal.App.4th at p. 162.) Of those conditions, the one Donnie relies on in this case is where "'[a] man who received a child into his home and openly holds the child out as his natural child is presumed to be the natural father of the child.'" (Ibid.; Fam. Code, § 7611, subd. (d).) A man seeking the benefit of the presumption has the burden of proving the foundational facts of the presumption by a preponderance of the evidence, i.e. that he received the child into his home and openly and publicly acknowledged paternity. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653; see also In re A.A. (2003) 114 Cal.App.4th 771, 782.)
Here, Donnie has not offered any evidence to show that he established the second of the two elements necessary for presumed father status, namely that he openly and publicly acknowledged paternity. To the contrary, his attorney admitted below that he did not have any such evidence. Instead, he argues that he can satisfy this element because he acted as the functional equivalent of Devin's father. While the evidence shows that he did so, that alone does not satisfy the test for presumed father status. He also asserts that nothing in Family Code section 7611, subdivision (d), requires a child to call the person a particular name, such as dad or daddy, to satisfy the second element. Although that may be true, the statute still requires that the person acknowledge paternity openly and publicly. There is simply no evidence here that Donnie did that. Instead, he held himself out as Devin's uncle or great-uncle.
Other courts have concluded that a relative raising a child cannot be deemed a child's presumed parent if the relative does not openly hold out the child as the relative's natural child. (In re Bryan D. (2011) 199 Cal.App.4th 127, 139-141 [holding 12-year-old child's grandmother, who had raised him from infancy, did not qualify as child's presumed mother where there was no evidence she openly held herself out in her community as the child's mother]; Jose C., supra, 188 Cal.App.4th at pp. 161-163 [rejecting grandfather's claim of presumed father status where grandfather did not hold himself out as the father of the child he had raised for the first six years of the child's life].) As explained in Jose C., "[m]any people may perform the function of a parent at various points in a child's life, including grandparents, stepparents, foster parents, extended family members, and so on. Doing so does not make any of them a presumed parent. That status is defined by statute, and it includes openly holding out the child as one's natural child. (Fam. Code, § 7611, subd. (d).)" (Jose C., supra, 188 Cal.App.4th at p. 162.)
Here, it is undisputed that while Donnie had raised Devin and provided for him as a parent would, he never held out Devin as his natural child. Accordingly, the juvenile court properly denied him presumed father status.
Legal Guardianship
Donnie alternatively contends that the juvenile court should have made him Devin's guardian so he could be given reunification services. While Donnie cites case law to the effect that a guardian may be provided reunification services in appropriate circumstances, such as In re Z.C. (2009) 178 Cal.App.4th 1271, he does not provide any case or statutory authority for the proposition that the juvenile court could name him Devin's legal guardian at the jurisdictional hearing.
Under section 361.5, subdivision (a), a juvenile court may provide reunification services to a guardian when a child is removed from the guardian's custody. The "guardian" as used in section 361.5, subdivision (a), however, specifically refers to a guardian appointed under the Probate Code. (In re Merrick V. (2004) 122 Cal.App.4th 235, 249-250.) In the present case, it is undisputed that Donnie never obtained legal guardianship of Devin and there is no evidence that an application for guardianship was pending at the time of the hearing at issue. The juvenile court, therefore, was not empowered to provide reunification services to Donnie since he was not Devin's Probate Code guardian.
Presentation of Evidence
Donnie contends the juvenile court erred by refusing to allow him to present evidence at the paternity hearing. In support, Donnie cites his question to the court, raised after his attorney had submitted on the motion and the court issued its ruling, as to whether he got "to say anything here," and the court's answer of "No." He also cites the court's statement that it did not have "any way of naming him as the guardian because there's no indication that he obtained guardianship."
A review of the record reveals that Donnie was provided ample opportunity to present evidence in support of his motion. His attorney did not seek to provide witness testimony, instead relying on the points and authorities submitted in support of the motion and her argument. After all counsel had an opportunity to argue, the court again asked her whether she had anything else to submit on the motion, and she responded no. In response to the court's denial of the request to be named Devin's guardian, Donnie's attorney acknowledged there was no legal guardianship.
Donnie's contention on appeal that witnesses would have testified that he held himself out as Devin's natural father is waived as he never requested to call witnesses on the paternity issue at trial. Issues not raised in the trial court are not cognizable on appeal. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641; In re Richard K. (1994) 25 Cal.App.4th 580, 589-590.)
DISPOSITION
The juvenile court's order denying the motion for presumed father status or, in the alternative, legal guardian of Devin is affirmed.
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Gomes, J.
WE CONCUR: ____________
Levy, Acting P.J.
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Dawson, J.