IN RE: ANTHONY C. (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Biological father, F.S. (appellant), appeals from an order terminating parental rights (Welf. & Inst.Code, § 366.26) to Anthony C.¹ Appellant contends the termination order was erroneous because there was never a finding that he was unfit to parent.   He also argues the court should have granted a request (§ 388) he made at the termination hearing for reunification services and the child's placement with some of appellant's relatives.   Last, appellant complains the court erred by failing to inquire whether he had Native American heritage under section 224.3, subdivision (a).   On review, we will reverse and direct a limited remand for an inquiry under section 224.3, subdivision (a).   Otherwise, we are unpersuaded by appellant's arguments.

PROCEDURAL AND FACTUAL HISTORY

Anthony's mother was a 15–year–old juvenile dependent when she gave birth to him in the spring of 2008.   She was 14 years old when she conceived.   In January 2009, respondent Kern County Department of Human Services (department) detained eight-month old Anthony and initiated dependency proceedings on his behalf.   His mother had become a habitual runaway and would take Anthony with her.   However, she could not adequately supervise Anthony.   He was suffering from pneumonia and she had not administered his medication for the condition in a timely manner.

Following Anthony's detention, a department social worker asked mother about Anthony's father.   Mother was reluctant to divulge the father's name.   She eventually gave the name of a male, who denied being the child's father and did not want to participate in the dependency proceedings.   The department subsequently characterized Anthony's father as unknown and the court found that reasonable efforts to identify and locate the alleged father had been unsuccessful.

The juvenile court exercised its dependency jurisdiction over Anthony and removed him from mother's custody in March 2009.   Despite a year's worth of services, mother was unable to reunify with Anthony.   As the end of services approached, she was once again a runaway and her whereabouts were unknown.   The juvenile court, in March 2010, terminated services for mother and set a section 366.26 hearing for a July 2010 date to select and implement a permanent plan for Anthony.

By May 2010, mother was in the local juvenile hall.   A department paralegal met with her there and questioned her about Anthony's parentage.   Mother stated a man named F. was Anthony's other possible father.   She did not know his last name, but she did know:  the man was 18 or 19 years old when Anthony was conceived, he was Hispanic, and he went to Wasco State Prison after Anthony's birth.   That same day, the paralegal located a booking profile for an F.S. who fit mother's description.   The next day, the paralegal identified appellant as the man in the booking profile.   Relevant to this appeal, appellant was more than three years older than the mother.

Later in May, appellant executed a “Statement Regarding Parentage,” which was filed with the juvenile court.   In it, he checked boxes stating he did not know if he was the child's parent and he requested DNA testing to determine whether he was the biological parent.   Counsel on behalf of appellant pursued the DNA request, which the juvenile court granted in June 2010.

At the same time, the department submitted a report in which it recommended the court free Anthony for adoption.   Anthony was in a placement that the department identified as the child's prospective adoptive home.   The department also characterized Anthony as generally adoptable.

On the July date set for permanency planning, DNA testing had not been completed because appellant was transported to an Arizona facility, where he awaited a deportation hearing.   While considering whether to grant a continuance, the court inquired of mother as to why she believed appellant was Anthony's father when she had previously identified another man as the child's father.

Mother testified she was three months pregnant when she had sex with the first man she identified and appellant was the only person she had been with before then.   After appellant and she broke up, she did not know she was pregnant.   She named the other man because she did not want appellant to know because she knew he was “going to fight me at court.”

Mother never told appellant he was Anthony's father.   Appellant did ask, however, if he was the child's father, but she never answered.   He started asking her since she was pregnant.   He asked her in letters whether he was the father.   Then, he sent one or more girls, who visited him in custody, to locate mother.   Lately, he had one of the girls call mother.  “[H]e wanted a DNA test and that he wanted to step up to be the father and that he would fight me in court if he had to.”   She agreed appellant was interested in being Anthony's father and agreed with the statement that she kept him from doing that.

Appellant never had any contact with Anthony.   Appellant also never provided “money or clothes or anything.”

The juvenile court continued the permanency planning hearing to an August date.   It also directed the department to take whatever steps necessary to accomplish the DNA testing.

By the continued hearing date, DNA testing established more than a 99 percent probability that appellant was Anthony's biological father.   Appellant's attorney filed a request pursuant to section 388 for placement and services.   He cited the DNA results as changed circumstances and claimed it would be in the child's best interest to establish a father-son relationship that mother had attempted to prevent.

A supplemental report by the department included a records review of appellant.   In late 2007 and early 2008, while mother was pregnant with Anthony, appellant pled no contest to possession of a stolen vehicle, possession of a controlled substance, and possession of deceptive identification and received probation with a three-month jail sentence.   Less than a month after Anthony was born, appellant was convicted of possession of a controlled substance and received probation with a one-year jail sentence.   In October 2008, appellant pled no contest to second degree burglary, a felony which was committed while he was released on bail or his own recognizance.   In November 2008, he received a 40–month prison term for the second degree burglary.

At the August hearing, appellant appeared by telephone.   He stated he had been in custody since August 2008 and was currently in the deportation center.   He did not have a release date;  it depended on what happened in court.   Appellant's attorney requested placement and services for appellant, arguing his custodial status and even potential deportation did not prevent either.

Following argument, the juvenile court denied appellant's section 388 request.   It was satisfied there was no showing that it would be in the child's best interest.

The court then heard argument on permanency planning for Anthony.   Appellant's counsel again asked the court to consider relative placement.   He thought appellant deserved “presumed father status based on his efforts under Kelsey S.” Counsel argued mother “basically defrauded” appellant and did not “let him know he was the dad.”   Meanwhile, appellant did everything he could to find out if the child was his although his options were limited because he had been in custody since 2008.

After the matter was submitted, the juvenile court elevated appellant to biological parent and denied his request for placement, stating it was not in the child's best interests.   At that point, appellant asked to say something.   The court agreed and appellant offered the following:

“When I was incarcerated, I put in everything I had in my possession to find out about Anthony, and I wouldn't get no response until the lady from the CPS went and seen me.”

After that, the juvenile court made its findings and order terminating parental rights.

DISCUSSION

I. Appellant's Paternity Status

Only a presumed, not a natural or biological, father is a parent entitled to receive placement or reunification services in dependency proceedings.  (In re Zacharia D. (1993) 6 Cal.4th 435, 451.)   Indeed, a presumed father must be found unfit for his parental rights to be terminated.  (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 831 (Kelsey S.), citing Stanley v. Illinois (1972) 405 U.S. 645;  Quilloin v. Walcott (1978) 434 U.S. 246, 247–248.)

For an unwed father to become a presumed father under California's statutory scheme, he can receive the child into his home and openly hold out the child as his natural child.  (Fam.Code, § 7611, subd. (d).)  In Kelsey S., the state Supreme Court held California's statutory scheme defining who is a presumed father violated federal equal protection and due process guarantees to the extent that the statutes allow a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest.  (Kelsey S., supra, 1 Cal.4th at p. 849.)

“If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilitiesemotional, financial, and otherwisehis federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.”  (Kelsey S., supra, 1 Cal.4th at p. 849.)

Such an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibility, but does not qualify for presumed father status under the state's statutory scheme (id. at p. 849) has come to be known as a Kelsey S. father.  (See e.g., In re Elijah V. (2005) 127 Cal.App.4th 576, 582.)

Claiming he is a Kelsey S. father, appellant contends the juvenile court could not terminate his parental rights without first finding he was unfit.   Appellant argues he was entitled to such constitutional protection based on the mother's testimony that he consistently asked her if he was the father and expressed a commitment to Anthony, but was thwarted by her.   In appellant's view, he did all he could, citing his postruling comment that “I put in everything I had in my possession to find out about Anthony.”   We disagree.   Appellant did not carry his burden.  (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679.)   The juvenile court properly denied appellant's request for Kelsey S. father status.

In determining whether a biological father has demonstrated such a commitment to his parental responsibilities, the father's conduct both before and after the child's birth must be considered.  (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.)

Based on appellant's repeated queries of the mother, starting from the time she was pregnant, and the mother's very young age when she conceived, the juvenile court could properly find appellant knew or reasonably should have known the mother was pregnant with his child.  (See In re Vincent M. (2008) 161 Cal.App.4th 943, 960.)   However, appellant did nothing to demonstrate a commitment to his parental responsibilities to Anthony.   He never provided food, clothing or anything else for mother or Anthony nor had any contact with the child.   Repeatedly asking mother or sending people to locate and send her threatening messages did not suffice.   Appellant did not promptly come forward and demonstrate a full commitment to his parental responsibilities emotional, financial, and otherwise.  (Kelsey S., supra, 1 Cal.4th at p. 849.)

In addition, the fact that the mother did not answer appellant's queries did not compel the juvenile court to find she unilaterally precluded appellant from becoming a presumed father under the Family Code. Appellant made no effort to establish how mother's silence prevented him from openly holding out Anthony as his natural child.   In this regard, the juvenile court also did not have to ignore appellant's exposure to an unlawful sexual intercourse charge, under Penal Code section 261.5, subdivision (c), had he openly held out Anthony as his child.   To the extent appellant did not receive Anthony into his home, there was also appellant's criminal history to consider.   Within a month of Anthony's birth, appellant received a one-year jail sentence and later still a 40–month prison term.   Appellant admitted he had been incarcerated since August 2008, when Anthony was approximately three months old.

Having rejected appellant's claim that he was entitled to Kelsey S. father status, we do not reach his further argument challenging at length In re Vincent M., supra, 161 Cal.App.4th 943.   The appellate court there reversed a dependency court ruling at the permanency planning stage that a late appearing father whose paternity was hidden from him by the mother was a nonstatutory presumed father entitled to reunification services without regard to the child's best interests.  (Id. at p. 947.)

II. Denial of Appellant's Section 388 Request

Appellant also contends the juvenile court abused its discretion by denying his section 388 request for reunification services and placement with his relatives.   He again cites the DNA evidence of his paternity as changed circumstances and argues it would be in Anthony's best interests to establish a relationship with him and his family.   We disagree.

Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)   Assuming for the sake of argument that the results of the DNA testing constituted changed circumstances, we nevertheless conclude the juvenile court did not err by denying the section 388 request.   Appellant made no showing in the juvenile court that either reunification services or relative placement was in Anthony's best interest.

Appellant claims on review that the natural parent/child relationship is a vital one to a child's psyche such that Anthony had an interest to establishing such a relationship.   Appellant also continues to blame the mother for the lack of any such relationship.   In the process, appellant overlooks Anthony's needs at the permanency planning stage for permanency and stability.  (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)   Here, there was no proof offered that services for appellant while he awaited adjudication on the government's effort to deport him or placement with his relatives who were strangers to Anthony would promote the child's interest in permanency and stability.

III. Indian Child Welfare Act

Last, appellant complains and respondent concur

s that the juvenile court erred by not asking him, as one of Anthony's biological parents, whether he had Indian ancestry for purposes of the Indian Child Welfare Act (ICWA). (§ 224.3, subd. (a).)  Although the mother denied any Indian ancestry when asked, neither the department nor the court inquired of appellant whether Anthony was or might be an Indian child.   Because we refuse to speculate about what appellant's response to any inquiry would be, we will grant a limited remand.  (In re J.N. (2006) 138 Cal.App.4th 450, 461.)

DISPOSITION

The order terminating parental rights is reversed and remanded for the limited purpose of conducting an inquiry of appellant pursuant to Welfare and Institutions Code section 224.3, subdivisions (a)-(c).  The juvenile court is hereby directed to assure that such an inquiry is conducted.   If after an inquiry of appellant is completed, the court does not have reason to know that an Indian child is involved, the court shall reinstate the order terminating parental rights.   Alternatively, if the court or the department knows or has reason to know that an Indian child is involved, the department shall provide notice in accordance with Welfare and Institutions Code section 224.2 and in compliance with the Indian Child Welfare Act (ICWA) to the Bureau of Indian Affairs (BIA) and any identified tribes.   In the event the BIA or any tribe responds by confirming that the child is or may be eligible for membership within 60 days of sending proper notice under ICWA and Welfare and Institutions Code section 224.2, the court shall proceed accordingly and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with ICWA requirements.   If there is no confirmation that the child is or may be eligible for Indian tribal membership within 60 days after proper and adequate notice has been received, the court shall reinstate the order terminating parental rights.

FOOTNOTES

FOOTNOTE.  

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