Opinion
F086581 F086778
12-20-2023
In re ZACHARY A., a Person Coming Under the Juvenile Court Law. v. RAYMOND M., Defendant and Appellant. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, In re ZACHARY A., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.A., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Raymond M. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant C.A. Jennifer M. Flores, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Tulare County. No. JJV073234H JJV073234H Hugo J. Loza, Judge.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Raymond M. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant C.A.
Jennifer M. Flores, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellant Raymond M. (father) is the biological father of Zachary A. (born October 2022) (the child), who is the subject of a dependency case. Father appeals from the juvenile court's orders denying his petition for modification under Welfare and Institutions Code section 388, and terminating his parental rights under section 366.26. Father contends the juvenile court erred when it determined that he did not qualify as a father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). The child's mother, C.A. (mother), raises no independent grounds in her appeal. Instead, she requests that we also reverse the order terminating mother's parental rights if we reverse the order terminating father's parental rights. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The sole issue on appeal concerns father's paternity status; therefore, we primarily restrict our facts to those bearing on that issue.
In October 2022, the Tulare County Health and Human Services Agency (agency) received a referral alleging the child and mother tested positive for methamphetamine at the time of the child's birth. Mother was already involved in dependency proceedings for the child's siblings where her compliance was described as minimal.
An agency social worker responded to the hospital, and mother denied any current drug use. Mother claimed she had not used drugs since March 2022, which was around the time she became aware of her pregnancy. She attributed her lack of any prenatal care to not having adequate transportation. Mother was currently living with her grandmother, mother, and maternal uncle, and she did not allow the social worker to assess the living environment. The social worker inquired of the identity of the child's father, but mother stated," 'I don't know.'" After further efforts to gather information, mother stated," 'He wants nothing to do with this,'" and she declined to provide additional information.
The child was taken into protective custody, and the agency filed an original petition alleging the child was described by section 300, subdivisions (b)(1) and (j). The petition alleged the child was at substantial risk of suffering serious physical harm as a result of mother's substance abuse and mental health problems. The petition further alleged that mother previously neglected seven of the child's siblings, who were adjudged dependents in three separate cases from February 2021 to March 2022.
At the detention hearing held on October 31, 2022, mother was present and testified regarding the child's paternity. Mother testified that she was not married or living with the child's father at the time of conception. She indicated that she did not know the identity of the child's father, and no one else was present at the hospital when the child was born. After the parties submitted on the issue of detention, the juvenile court ordered the child detained from mother's custody, and it set a jurisdiction and disposition hearing for December 6, 2022.
The agency's jurisdiction and disposition report, filed on December 6, 2022, recommended that the allegations in the petition be found true, family reunification services be denied for mother pursuant section 361.5, subdivision (b)(13), and a section 366.26 hearing be set. The child was placed in a resource family home, and the care provider for two of the child's siblings was interested in placement. The child was experiencing tremors, inconsolable high pitch crying, and poor head control, and he was referred to Central Valley Regional Center (CVRC) for an assessment.
The report also detailed mother's child welfare history. In February 2021, the juvenile court sustained allegations that the child's half sibling, N.S., was at risk of serious physical harm due to mother's failure to protect him from domestic violence and his father's substance abuse and mental illness. Mother's family reunification services were terminated in August 2021, and N.S.'s father was awarded sole legal and physical custody. In October 2021, the child's half sibling, R.A., was adjudged a dependent of the juvenile court shortly after his birth due to mother's drug use during the pregnancy. Family reunification services were terminated for mother as to R.A. on June 21, 2022. In March 2022, the child's half siblings, S.A., J.S., Je.S., Ju.A., and J.A. were adjudged dependents of the juvenile court, and mother was provided family reunification services. Mother was not compliant with her case plan, and a review hearing was pending.
A contested jurisdiction and disposition hearing was held on January 10, 2023, for the child. Mother was not present because she was upset after the completion of the section 366.26 hearing for R.A. Mother's counsel entered an objection on her behalf, and the juvenile court found the allegations in the petition true, denied mother family reunification services pursuant to section 361.5, subdivision (b)(13), and set a section 366.26 hearing for April 4, 2023. On January 27, 2023, the agency requested authorization for publication of notice for the section 366.26 hearing, and the hearing was reset for April 25, 2023. In February 2023, the agency published notice of the section 366.26 hearing in a local newspaper for anyone claiming to be a parent of the child.
On February 28, 2023, father appeared in court for a hearing involving the siblings, S.A., J.S., Je.S., Ju.A. and J.A. Father was informed that the child's matter was not on calendar, and the juvenile court appointed him counsel for the child's proceedings. The court began a new paternity inquiry of mother. Mother denied that father was present when the baby was born or listed on the birth certificate. She also indicated that he never lived with or visited the child. The court asked if mother believed father was the child's father, and she responded, "Possibility." A paternity test was ordered with father's agreement, and he was deemed an alleged father. Father provided his contact information, and he made no other requests at the hearing.
In its section 366.26 report, dated April 21, 2023, the agency recommended that the juvenile court terminate the parental rights of mother and father and order a permanent plan of adoption for the child. The child was placed in the home of a nonrelative extended family member and two of his older siblings on December 7, 2022. He continued to reside in this placement, and his care provider was committed to a plan of adoption. The child was receiving physical therapy and cognitive therapy through CVRC. It was reported that the child was struggling with his body positions and unable to do" 'tummy time.' "
On March 20, 2023, the paternal grandmother contacted the social worker by phone to inquire about the father's paternity test. Two days later, the social worker called the paternal grandmother to obtain father's social security number and phone number, and father could be heard providing the information to the paternal grandmother. Father's paternity test was scheduled for April 21, 2023, and paternal grandmother was informed of the date on April 10, 2023. Father did not personally contact the social worker or make any requests to visit with the child.
Father was present and represented by counsel during the initial section 366.26 hearing held on April 25, 2023. A contested hearing was set for June 21, 2023, and father made no requests for custody or visitation. On May 3, 2023, genetic testing results were issued, which determined that father could not be excluded as the biological father of the child.
In an addendum report, filed on May 23, 2023, the agency provided information on the paternity test results and father's criminal history. Father had two pending criminal cases involving the possession of drug paraphernalia. Court records also indicated that father had four previous misdemeanor convictions from December 2018 to October 2020 for drug possession, drug paraphernalia possession, and carrying a concealed dirk or dagger. The agency concluded that it would not be in the child's best interest to provide father with reunification services as the child's biological father, and it reiterated the previous recommendation for a permanent plan of adoption.
On June 20, 2023, father's counsel filed a section 388 petition requesting the juvenile court find that father is the biological father of the child and order visitation and services. The petition alleged that his request was in the child's best interest because he was "willing and ready to step up to the responsibilities and would simply like the chance to show the court he can successfully raise this child."
In a declaration attached to the petition, father stated he was in a relationship with mother until she became pregnant. He claimed mother ended the relationship after he told her that drug use would need to stop. Mother contacted father before the child was born, and she wanted him to be present for the child's delivery. However, mother changed her mind, and he did not hear anything until after the child's birth. Father indicated that he went to see the child two days after the birth, but he was denied any type of visits. He also stated that he "attempted other avenues to get my child but was unaware of the CWS and Dependency laws."
On June 21, 2023, father was present for the combined section 388 and section 366.26 hearing. The juvenile court granted a portion of the section 388 petition by finding that he was the child's biological father, and the issues of visitation and services were reserved for a continued hearing. Mother's counsel requested a continuance because mother was sick. The court granted mother's request to continue the combined hearing, and it directed the social worker to assess whether visits with father were in the child's best interest.
The agency filed a report in response to father's section 388 petition on July 7, 2023. On June 22, 2023, the social worker spoke with the paternal grandmother on the phone. The paternal grandmother explained that father always lived with her, did not work, and received Supplemental Security Income (SSI). She described him as" 'kind of slow,'" and he received special education services until he was 18 years old. The paternal grandmother was aware of mother and father's relationship, and she believed they were together for less than two months. She and father were mother's neighbors.
In February 2022, mother found out that she was pregnant and informed father of the pregnancy. Father reportedly told mother to stop using drugs, and he claimed that he stopped using drugs. The paternal grandmother indicated that mother broke up with father because mother did not want to stop using drugs. Father and the paternal grandmother were both aware of mother's continued drug and alcohol use throughout the pregnancy. The paternal grandmother and aunt were able to provide transportation for father, and father was able to drive on his own.
Father missed his initial appointment with the social worker on June 29, 2023. On July 3, 2023, father met with the social worker at the agency's office. Father reported no prior or current work history, and his only source of income was SSI. He had no prior marriages or children, and he lived with the paternal grandmother and aunt. Mother and father met when she had her first child, and he interacted with her as a neighbor. Their relationship lasted for one year, and he would go over to mother's home. Father indicated that he believed the child was his, but mother did not inform him that he was the father. He was aware of the previous removals of mother's children and involvement with the agency, and he provided transportation for mother to complete her case plan. A neighbor told father that the child looked like him, but he was informed that mother refused visitors while in the hospital.
There had been no in-person contact between the child and father. Father was informed that the child was detained by the agency after mother was discharged from the hospital. Mother told father that he could get the child back if he was serious, and she explained that he needed to go through all of the steps. Father disclosed smoking "cigarettes and buds," and he intended to stop due to the child's respiratory issues. He did not have a valid driver's license, but he suggested that he would work to obtain one. Father admitted to driving mother around without a license, and he also indicated that he would test positive for methamphetamine and marijuana if he submitted to a drug test.
The report detailed the agency's concerns that father would be unable to meet the child's various medical and developmental needs. The child had several referrals for medical issues, daily treatments for respiratory issues, and CVRC appointments for developmental issues. The care providers provided father an opportunity to meet the child in a public location, but father indicated that he had to go to church instead. The agency was also concerned with father's repeated drug related arrests. The child was bonded to his current care providers and half siblings, and it did not believe that visitation or services were in the best interest of the child.
On July 14, 2023, the juvenile court held a contested hearing on father's section 388 petition and the section 366.26 hearing. Counsel for the agency submitted on the agency's reports and requested judicial notice of the case file. Father's counsel indicated that he was requesting visits and services, and father testified in support of his request. Father testified that his relationship with mother ended in February 2022 because she did not want to get sober during her pregnancy. He heard about the child's birth from a neighbor two days after he was born. Father was told that mother refused his request to visit the child in the hospital.
Father testified that he filed "something in main court" in order to "find out if it was my son or not." He made his first appearance in juvenile court on February 28, 2023, and he completed his appointment for the paternity test on April 21, 2023. The social worker told father to contact his attorney once he was informed about the results of the paternity test.
On cross-examination, father testified that he first appeared in court on February 28, 2023, because he was told to show up and tell the juvenile court that he was the child's father. He was also aware of the likelihood that the child would be adopted when he made his first appearance in court. Father was able to see the child at a park after the last court date.
In closing argument, father's counsel argued, for the first time in the proceedings, that father qualified as a Kelsey S. father. He asserted that father would be entitled to an order of services if he was found to be a father pursuant to Kelsey S. The juvenile court clarified that the section 388 petition required a finding of best interest, and it asked if an order of services was in the best interest of the child. Father's counsel then argued that an order of services would be in the child's best interest. Counsel for the child opposed father's section 388 petition and argued that an order of services was not in the child's best interest. The agency's counsel requested that the juvenile court deny father's section 388 petition and refuse to find that he was a Kelsey S. father.
After hearing argument from counsel, the juvenile court denied father's section 388 petition because it did not believe an order of reunification services for father was in the child's best interest. Father's counsel interjected to clarify whether the court was refusing to find that he was a Kelsey S. father. The court responded as follows:
"It's not real clear to me what his efforts were to become the presumed father or find out if he was the biological father. His efforts were simply to become biological father, and then once he learned he was the biological father, he says, 'Okay. I want to visit,' and so forth. All that was apparently determined in May, which is maybe just a month or two ago.
"At this point, I'm not even sure he would qualify for Kelsey S. father. The Court will make the finding there's insufficient evidence to show that he would qualify for that."
The juvenile court then proceeded with the section 366.26 hearing, and it terminated the parental rights of mother and father and selected a plan of adoption.
DISCUSSION
Father contends the juvenile court should have found him to be a Kelsey S. father.
A. Legal Principles
In dependency proceedings, "fathers" are divided into three different categories: presumed, alleged, and biological." 'The extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status.'" (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.) A presumed father is eligible to have custody of his children, appointed counsel, and reunification services. (§§ 317, 361.2, subd. (a), 361.5, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 448449; In re O.S. (2002) 102 Cal.App.4th 1402, 1410.)
A presumed parent must demonstrate" 'a full commitment to ... parental responsibilities-emotional, financial, and otherwise[.]'" (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802. (Jerry P.).) "The critical distinction is not the living situation but whether a parent-child relationship has been established.' "[T]he premise behind the category of presumed [parent] is that an individual . . . has demonstrated a commitment to the child and the child's welfare ...." '" (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 384-385.) "One who claims he [or she] is entitled to presumed [parent] status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement." (In re T.R. (2005) 132 Cal.App.4th 1202, 1210.)
"[P]resumed fathers possess far greater rights than alleged or biological fathers. [Citation.] Only a presumed, not a mere biological, father is a 'parent' entitled to receive reunification services, and only a presumed father is entitled to custody of his child. [Citation.] In contrast, the juvenile court 'may' order reunification services for a biological father if the court determines that the services will benefit the child." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.)
But," 'the mere existence of a biological link does not merit ... constitutional protection' [citation]; rather, the federal Constitution protects only the parental relationship that the unwed father has actively developed by' "com[ing] forward to participate in the rearing of his child"' [citation] and 'act[ing] as a father.'" (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1052.)" 'Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.'" (Lehr v. Robertson (1983) 463 U.S. 248, 260, italics omitted.)
Sometimes, the mother or another third party prevents the purported father from satisfying the factual predicates needed for "presumed father" status, such as physically receiving the child into the home. (Kelsey S., supra, 1 Cal.4th at p. 825.) "[A]n unwed biological father who comes forward at the first opportunity to assert his parental rights after learning of his child's existence, but has been prevented from becoming a statutorily presumed father under [Family Code] section 7611 by the unilateral conduct of the child's mother or a third party's interference" acquires a status "equivalent to presumed parent status under [Family Code] section 7611." (In re M.C. (2011) 195 Cal.App.4th 197, 213, 220.) Thus, an unwed man may have a constitutional right to presumed father status if he "promptly comes forward and demonstrates a full commitment to his parental responsibilities-emotional, financial, and otherwise ...." (Kelsey S., supra, 1 Cal.4th at p. 849.) Such a father is referred to as a Kelsey S. father.
In determining whether a father is a Kelsey S. father, the court must consider the father's conduct "both before and after the child's birth ._" (Kelsey S., supra, 1 Cal.4th at p. 849.) "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.' 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.)
B. Standard of Review
"The party seeking to establish presumed parent status bears the burden of proof by a preponderance of evidence." (In re M.C., supra, 195 Cal.App.4th at p. 216.) "The burden is on a biological father who asserts Kelsey S. rights to establish the factual predicate for those rights." (In re Adoption of O.M. (2008) 169 Cal.App.4th 672, 679.)
When the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, the question on appeal is whether the evidence was sufficient, as a matter of law, to compel a finding in favor of the appellant. "Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
C. Analysis
Father contends that the evidence supported a finding that father promptly came forward and demonstrated a full commitment to his parental responsibilities. However, father's argument fails to recognize that our review does not depend on whether substantial evidence supports a finding contrary to that made by the juvenile court. The agency asserts that there was insufficient evidence to support father's paternity claim under Kelsey S. The question in this appeal is whether the evidence was sufficient, as a matter of law, to compel a finding that father qualified as a Kelsey S. father.
We granted the agency's request for judicial notice of various documents from a child support case involving the child and father. These documents were not presented to the juvenile court, and therefore, we do not find it necessary to rely on them in reaching our decision.
First, father claims the juvenile court improperly considered his substance abuse and criminal history in denying his request for Kelsey S. father status. However, it is clear from the context of the court's statements that it considered his drug history in the context of his request for services and visitation on the section 388 petition. Nowhere in father's section 388 petition was a request for Kelsey S. status made. Furthermore, on appeal, a trial court's determination will be upheld where the record supports the ruling even where the reviewing court upholds it for reasons other than those stated by the trial court for its decision. (People v. Zapien (1993) 4 Cal.4th 929, 976.) We do not review the reasons for the juvenile court's decision, but must affirm it if it is correct on any theory, even if its reasoning was erroneous. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330; J.B. Aguerre, Inc. v. American Guarantee &Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.) Thus, we reject father's claim that the juvenile court improperly considered his substance abuse.
In support of his primary contention, father highlights evidence that mother cut off contact with him during the pregnancy and refused to allow him to visit her in the hospital. He also claims that he came forward as the child's father when he became aware of the dependency proceedings in February 2023. However, this attempt to solely rely upon evidence that is unfavorable to the juvenile court's actual finding is insufficient to prevail on appeal.
The evidence showed that father made a belated and half-hearted commitment to his parental responsibilities. Father was in a relationship with mother at the time of the child's conception, and he believed the child was his. Mother received no prenatal care during her pregnancy, and both father and the paternal grandmother were aware of her drug use. This demonstrates that father knew or reasonably should have known of the pregnancy in March 2022, which triggered his duty to "promptly attempt to assume his parental responsibilities" as fully as mother would allow and circumstances permitted. (Kelsey S., supra, 1 Cal.4th at p. 849.) However, there was no evidence that father offered to connect mother to rehabilitation services, acknowledged paternity publicly, provided mother transportation for prenatal care, or prepared a suitable home with adequate supplies for the child.
In addition, father went to the hospital after mother gave birth, and he was informed that the child looked like him. Once mother was discharged from the hospital, he learned that the child was detained by the agency in October 2022. Mother informed him that he could get the child back if he was serious and went through all of the steps. More than six months elapsed from the date of the child's initial removal until father complied with someone's request to attend a dependency hearing involving mother's other children in February 2023. Father was aware of the potential plan of adoption when he made his first appearance in the proceedings. However, he did not request visits with the child until he filed the section 388 petition on June 20, 2023, which was the day before the section 366.26 hearing.
In his testimony, father made a vague reference to an earlier attempt to file "something in main court" to "find out if it was my son or not," but he provided no documentation of any efforts to seek custody of the child.
Father's efforts, or rather lack thereof, do not compare favorably to others who have achieved Kelsey S. status. In Jerry P., supra, 95 Cal.App.4th 793, J.R. had a relationship for approximately a year with the child's mother, during which time the baby, Jerry, was conceived. When J.R. learned the mother was pregnant, he assumed the baby was his and told others the mother was pregnant with his child. J.R. eventually broke off his relationship with the mother due to her drug abuse despite his warnings she was harming the baby. Notwithstanding their breakup, J.R. continued to provide support for the mother, by supplying her with vitamin supplements and bus fare for doctor visits, helping with prenatal care and paying for medications. (Id. at p. 797.) Then after Jerry was born, J.R. visited him frequently in the hospital until one day when the baby was gone. Unaware Jerry had been placed in foster care and dependency proceedings initiated after Jerry tested positive for cocaine, J.R. tried unsuccessfully for four months to find Jerry. When J.R. eventually learned of Jerry's whereabouts, he requested visits without success. He then went to court and petitioned for presumed father status and secured visitation rights, which he vigorously exercised. J.R. was open" 'to any services that would help,'" even though subsequent DNA tests showed he was not Jerry's biological father. (Id. at pp. 798-800.) The appellate court held that Kelsey S. "protection should extend to men such as J.R. who have demonstrated their commitment to parental responsibilities by meeting the conditions set forth in [Kelsey S.], none of which depends on biology." (Id. at p. 816.)
Here, father did not meet the requirements of Kelsey S., as outlined in Jerry P.: "[A] man is entitled to protection from invidious discrimination in attempting to attain presumed father status if (1) once he 'knows or reasonably should know of the pregnancy, he ... promptly attempt[s] to assume his parental responsibilities as fully as the mother will allow and his circumstances permit,' and (2) 'is indisputably ready, willing, and able to exercise the full measure of his parental responsibilities ._ [¶] . . . [¶] . .. emotional, financial, and otherwise.'" (Jerry P., supra, 95 Cal.App.4th at pp. 816-817, fn. omitted, quoting Kelsey S., supra, 1 Cal.4th at pp. 847, 849.)
Despite having a reasonable belief the child was his and knowledge that the child was in the custody of the agency, father failed to take any action to confirm his paternity until more than six months after the child's birth. Father's delayed attempt to request a paternity test only occurred once a plan of adoption was being considered for the child. His conduct stands in stark contrast with the father in Jerry P., who promptly requested and exercised visitation rights prior to discovering his biological status. Given this evidence, we conclude father failed to establish as a matter of law that he qualifies as a father within the meaning of Kelsey S.
To the extent mother joins in father's brief, contending that if we were to reverse the order terminating his parental rights we must reverse the judgment terminating her parental rights, we also affirm the order terminating mother's parental rights.
DISPOSITION
The orders appealed from are affirmed.
[*] Before Levy, Acting P. J., Snauffer, J. and DeSantos, J.