J.F., Petitioner, v. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES

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Court of Appeal, Fifth District, California.

J.F., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

F060970

Decided: January 14, 2011

 *ORIGINAL PROCEEDINGS;  petition for extraordinary writ review.   Jane Cardoza, Judge.   Alicia Borrego for Petitioner.   No appearance for Respondent.   Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's orders denying him presumed father status and setting a Welfare and Institutions Code section 366.26 1 hearing as to his son, G. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner is the biological father of G. who was removed from the custody of his mother, Kristine, in January 2010, two days after his birth.   G. was born while Kristine was an inpatient in a psychiatric facility, having been involuntarily admitted a month prior.   Kristine's doctor and the hospital social worker had serious concerns about her ability to care for G.

Kristine told a social worker from the Fresno County Department of Social Services (department) that Michael P. was G.'s father but that Michael's name was not on the birth certificate.   She said she used methamphetamine three times during her pregnancy and did not know she was pregnant until seven weeks prior.   It is not clear from the record to what date the seven weeks refers.

Michael told the social worker that Kristine and G. could live with him after they were discharged from the hospital but only temporarily.   He said Kristine was schizophrenic and did not like to take her medication.   He said she moved around often and never stayed very long.   He did not know where she stayed when she was not with him.   He expressed doubt that he was G.'s father.   He said he did not sign G.'s birth certificate and asked for a paternity test.

Two days following G.'s birth, Kristine left the hospital without being discharged.   She told the hospital social worker the department could take G. She did not participate in these proceedings and her whereabouts would remain unknown throughout.

The department filed a dependency petition on G.'s behalf alleging Kristine's drug use and mental state placed him at risk of harm.   The petition identified Michael as G.'s alleged father.   The department placed G. in the home of foster parents, Mr. and Mrs. J.

The juvenile court adjudged G. a dependent of the court and found that Michael was not G.'s biological father based on the results of paternity testing.   In early March 2010, at the dispositional hearing, the juvenile court ordered reunification services for Kristine in the event she contacted the department.   The department provided the court a copy of G.'s birth certificate which does not identify a father.   Approximately a week after the hearing, petitioner contacted the department and requested a paternity test.   He said he and Kristine were in a relationship that ended one year prior.   He said he wanted to be involved in G.'s life if G. was his son.

In April 2010, the juvenile court ordered paternity testing for petitioner and asked the department to put the matter back on calendar when the results were received.   In June 2010, the court granted Mr. and Mrs. J.'s request for de facto parent status.

In July 2010, the juvenile court deemed petitioner G.'s biological father based on the paternity test results.   The department filed an addendum report recommending the juvenile court not elevate petitioner's paternity to presumed father status because he had no relationship with G. and had not visited G.

In August 2010, petitioner filed both a “Request to Change Court Order” (JV-180) pursuant to section 388 and a “Statement Regarding Parentage” (JV-505) asking the court to elevate him to presumed father and assess him for placement.   In both filings, petitioner asserted that he and Kristine met in 2005 and lived together for approximately three years.   After a domestic violence incident, Kristine received a protective order against petitioner.   Despite the order, they saw each other a few more times and had sexual relations.   Shortly thereafter, Kristine moved in with Michael P. According to petitioner, Kristine did not tell him she was pregnant and he did not see her again until he appeared in these proceedings, approximately a year later.   Petitioner was informed of his possible paternity by Kristine's stepfather approximately two months after G. was born.   By that time, G. had been detained.   Petitioner printed a picture of G. that was sent to him by e-mail and informed his relatives that G. was his child.

On September 14, 2010, the juvenile court conducted a contested hearing on the JV-505 to determine petitioner's paternity status.   Petitioner's position was that he qualified as a presumed father pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).   Petitioner appeared in custody, having been arrested in August 2010 for violating probation on a domestic violence conviction involving Kristine.   He testified and provided a confusing chronology of their contact from approximately February through May 2009.   He also gave seemingly conflicting testimony about whether he knew Kristine was pregnant.   Under cross-examination by G.'s attorney, petitioner acknowledged he was taking medication for schizophrenia.

Petitioner's testimony, though confusing, evinced the following facts.   Petitioner was arrested in February or March of 2009 for domestic violence against Kristine and a protective order was issued.   However, despite the order, he and Kristine lived together and had sexual relations.   He estimated they last had sexual relations three or four months after Christmas of 2008.   He said they separated because of Kristine's pregnancy.   In April or May 2009, Kristine went to live with Michael P. Petitioner moved Kristine's belongings out of his apartment and helped place them in Michael's car.   He did not know where Michael and Kristine lived and did not have any further contact with her.

Petitioner further testified that he was in drug treatment when G. was born.   In March 2010, he received G.'s picture and realized he might be G.'s father so he contacted the department and asked for visitation.   The social worker told him she could not give him any information about G. and said she would see him in court.   He said he had not visited G.

Following argument, the juvenile court continued the hearing for its ruling.   On September 21, 2010, the juvenile court denied petitioner's request to be elevated to presumed father status, finding that he did not meet the standard for such a designation under Kelsey S. The court continued the matter to September 28, 2010, and asked the department to assess petitioner for reunification services.

In an addendum report, the department recommended against providing petitioner reunification services, opining it would not be in G.'s best interest to do so because G. did not have a relationship with petitioner and petitioner would be in custody until January 2011.   In addition, the department reported that G. was bonded to Mr. and Mrs. J. who were committed to adopting G. In a separate report, the department recommended the juvenile court terminate Kristine's reunification services.

On September 28, 2010, the juvenile court conducted a combined hearing on the section 388 petition and the six-month review.   Petitioner's attorney submitted the matter on the evidence presented on September 14, 2010.   The court found it was not in G.'s best interest to provide petitioner reunification services and denied his section 388 petition.   The court also found Kristine's whereabouts were unknown, terminated her reunification services and set a section 366.26 hearing.   This petition ensued.

DISCUSSION

Petitioner contends the juvenile court erred in denying him presumed father status.   He prays this court will direct the juvenile court to vacate its order setting the section 366.26 hearing and to order reunification services.   We decline to do so.

In dependency proceedings, the presumed father is accorded the greatest paternity rights vis-à-vis the dependent child.  (In re Zacharia D. (1993) 6 Cal.4th 435, 451.)   As relevant to this case, it entitles him to reunification services. (§ 361.5, subd. (a).)  Conversely, a biological father is not entitled to reunification services.  (Ibid.) Nevertheless, the juvenile court may order services for the biological father if it determines that services will benefit the child.  (Ibid.)

Family Code section 7611 sets forth the presumptions under which a man may be declared a presumed father.2  In order for an unwed biological father such as petitioner to attain presumed father status under the statute, he must demonstrate that he received the child into his home and held the child out as his natural child.  (Fam.Code, § 7611, subd. (d).)  Petitioner does not claim presumed father status under Family Code section 7611.   Rather, he claims, he qualifies as G.'s presumed father under the holding of Kelsey S.

In Kelsey S., the California Supreme Court examined the constitutionality of Family Code section 7004, subdivision (a), now Family Code section 7611, subdivision (d), insofar as it related to an unwed biological father's attempt to attain presumed father status.  (Kelsey S., supra, 1 Cal.4th at pp. 849-850.)   The biological father in that case sought custody of his child as soon as the child was born but was prevented from doing so by the mother.   (Id. at p. 832.)   He immediately sought legal recourse.  (Ibid.) The court held that the statute violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statute allows a mother to unilaterally preclude her child's biological father from becoming a presumed father.  (Id. at p. 849.)   The court stated:

“If 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.   Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship.   Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.”  (Ibid.)

In determining whether a biological father merits presumed father status under Kelsey S., the juvenile court must consider his conduct before and after the child's birth.  (Kelsey S., supra, 1 Cal.4th at p. 849.)   Once he 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.”  (Ibid.) “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.) If an unwed father fails to demonstrate a full commitment to his parental responsibilities, the statute is constitutionally sufficient as applied to him.  (Id. at pp. 849-850.)

On appeal, we review the juvenile court's determination of presumed father status under the substantial evidence standard.  (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 368-369.)   In so doing, “ ‘[w]e must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment.  [Citations.]’ ”  (Id. at p. 369.)

Petitioner challenges the juvenile court's determination he is not a presumed father under Kelsey S. on several grounds:  (1) there is insufficient evidence he knew Kristine was pregnant or knew he was G.'s father before March 2010;  (2) even if he knew or had reason to know that he was G.'s father earlier than March 2010, he should not be penalized for not knowing Kristine's whereabouts and providing her financial support for G.;   and (3) Kelsey S. should not be strictly applied to biological fathers who were deliberately thwarted from asserting their parental responsibilities but should also be applied to biological fathers who were precluded from doing so because of the unintentional conduct of others or other circumstances.

In challenging the sufficiency of the evidence pertaining to his knowledge of Kristine's pregnancy, petitioner asserts his testimony and inability to recall dates precludes any factual finding on that issue.   To that end, he cites to a portion of his testimony where he denied knowing Kristine was pregnant.   Granted, petitioner's testimony is confusing.   However, the juvenile court found he knew Kristine was pregnant and petitioner's testimony supports that finding.   Petitioner testified that he believed Kristine was pregnant and that he and Kristine were not getting along because of her pregnancy.   In addition, he testified he and Kristine discontinued sexual relations because Kristine was pregnant and separated because of her pregnancy.   Consequently, petitioner knew Kristine was pregnant as early as April 2009 when they separated.   He also had reason to know he could be the father of the child.

In light of the fact petitioner knew upon his separation from Kristine that she was pregnant, the question under Kelsey S. is whether petitioner promptly attempted to assume his parental responsibilities.   The juvenile court found that he did not, noting that he did not publicly acknowledge paternity, attempt to contact Kristine's relatives or attempt to pay any pregnancy or birth expenses.   Petitioner contends, in essence, he cannot be penalized for not locating Kristine if the department with its resources could not locate her.   However, he misses the point.   The question is not whether he was able to locate Kristine and assume his parental responsibilities but whether he tried.   There is no evidence he made any attempt to locate Kristine and track her pregnancy even though, according to his testimony, he was close to her family.   Unlike the father in Kelsey S., petitioner did not immediately seek custody and legal recognition of his parental rights.

Finally, contrary to petitioner's urging, strict application of Kelsey S. is exactly what is required.   The Kelsey S. court reiterated and emphasized the narrowness of its decision.  (Kelsey S., supra, 1 Cal.4th 816, 849.)   The court stated, “The statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities.   Our statutes (citations) are constitutionally sufficient when applied to a father who has failed to make such a showing.”  (Id. at pp. 849-850.)   Petitioner simply did not demonstrate the full commitment to his parental responsibilities envisioned by the Kelsey S. court.   Therefore, the juvenile court properly determined he is not G.'s presumed father under Kelsey S. and we affirm its ruling.

Since petitioner does not challenge the juvenile court's determination reunification services would not benefit G., we will not review it.   Accordingly, we also affirm the court's order setting a section 366.26 hearing.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Family Code section 7611 provides:  “A man is presumed to be the natural father of a child if he meets the conditions ․ in any of the following subdivisions:  [¶] (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [¶] (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:  [¶] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.   [¶] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [¶] (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:  [¶] (1) With his consent, he is named as the child's father on the child's birth certificate.  [¶] (2) He is obligated to support the child under a written voluntary promise or by court order. [¶] (d) He receives the child into his home and openly holds out the child as his natural child.”.  FN2. Family Code section 7611 provides:  “A man is presumed to be the natural father of a child if he meets the conditions ․ in any of the following subdivisions:  [¶] (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [¶] (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:  [¶] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.   [¶] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [¶] (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:  [¶] (1) With his consent, he is named as the child's father on the child's birth certificate.  [¶] (2) He is obligated to support the child under a written voluntary promise or by court order. [¶] (d) He receives the child into his home and openly holds out the child as his natural child.”