ALEX v. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Alex G., petitioner, is the biological father of five-year-old Julian.   In July 2011, following a contested dispositional hearing on a supplemental petition (Welf. & Inst.Code, § 387),¹ the juvenile court denied Alex's request to be deemed Julian's presumed father, ordered visitation for Alex, denied Julian's mother (hereafter mother) ² reunification services and set a section 366.26 hearing to implement a permanent plan.   Alex contends the juvenile court erred in denying him presumed father status and in not ordering visitation sooner.   He asks this court to vacate the section 366.26 hearing and grant him custody of Julian.   We will deny the petition.

FACTUAL AND PROCEDURAL SUMMARY

Dependency proceedings in this case were initiated in October 2008 after Julian's mother was arrested for possession of methamphetamine and child endangerment.   Then two-year-old Julian was taken into protective custody by the Fresno County Department of Social Services (hereafter department), detained by the juvenile court and placed in foster care.   At the time, mother was married to Juan and apparently identified Juan and Alex as potential fathers, even though she gave Alex's surname to Julian.³  Alex was incarcerated and restrained by court order from having contact with mother because of his conviction in 2006 for making terrorist threats against her.

In March 2009, the juvenile court conducted the dispositional hearing.   By that time, Juan unsuccessfully had attempted twice to be elevated to Julian's presumed father.   Alex was incarcerated and waived his appearance.   His attorney informed the juvenile court that she had contacted Alex and provided him a Judicial Council JV–505 form ⁴ so he could provide information about his paternity status.   He did not complete and return the form.   He wrote her a letter, however, stating that he did not doubt his biological paternity and therefore had not requested paternity testing.   He stated that he had been there for Julian as much as possible but had not been able to maintain a consistent relationship because of his incarceration.   Alex's attorney also informed the juvenile court that, according to the court's file, there previously had been a parentage inquiry and it did not appear there was a paternity judgment.   At the conclusion of the hearing, the juvenile court ordered reunification services for mother and Juan but denied Alex services pursuant to section 361.5, subdivision (a).⁵  No appeal was taken from the dispositional orders.

From February 2009 through January 2011, mother participated in substance abuse treatment.   In May 2009, she gave birth to Juan's son, J., who was allowed to remain in her custody.   In January 2010, the juvenile court terminated family reunification services and placed Julian in her care under family maintenance services.   Alex continued to waive his appearance at hearings that occurred during this time period.

In January 2011, Julian and J. were removed from mother after she tested positive for methamphetamine.   The department filed a supplemental petition (§ 387) as to Julian and an original petition (§ 300) as to J. alleging that mother had placed them at risk of abuse or neglect by using drugs and she had failed to provide support for them.   Alex, incarcerated in state prison, was identified on the petition as Julian's alleged father.   The juvenile court ordered the children detained pursuant to the petitions and the department placed them together in foster care.

The jurisdictional hearing began in February 2011.   Mother's attorney informed the juvenile court that mother was in a correctional facility.   Alex appeared at the hearing out of custody with appointed counsel and asked the juvenile court to deem him (Alex) Julian's presumed father.   Alex's attorney informed the juvenile court that Alex lived with mother when Julian was born until Alex was incarcerated in 2007 and held Julian out as his child.   She also stated Alex had received child support paperwork while in custody that adjudicated him Julian's father and asked the juvenile court to conduct a paternity inquiry.   She stated Alex was willing to take a paternity test and sign a declaration of paternity if mother was willing.   She further stated Alex had not seen Julian in some time, but had an established relationship with him and requested visitation.   The juvenile court ordered the department to assess the appropriateness of visitation and granted it discretion to begin visitation.   The juvenile court continued the hearing until March.

Meanwhile, Alex filed a JV–505 form.   The form consists of a series of questions, optional answers that the declarant can checkmark, and sections for the declarant to write narrative answers.   The completed form was handwritten and signed by Alex. He checked the box that stated he believed he was Julian's parent and requested that the juvenile court find him to be Julian's presumed father.   He filled in blanks resulting in the statement “The child lived with me from [b]irth to 2007.”   On the lines provided to identify whom he told that Julian is his child and what activities he participated in with Julian was written:

“I am not denying my son, my family, friends, [mother's] family also know for a fact that Julian is my son.”  “I used to live with [mother] and my son in 2007 before I was sent to prison.”

On lines provided to identify money or things given to Julian, the times Julian spent with Alex's family, and other information Alex wanted the court to know was written:

“I was working when [mother] was pregnant providing [sic ] and also when my son was born before I was sent away.”  “My family has not spent too much time with my family.   A few times when he was just a baby.”  “I haven't been present too much in my sons [sic ] life but I'm ready to do what it takes to get my son.   He knows who I am.”

In March 2011, the juvenile court sustained the supplemental and original petitions and found the allegations true as to both children.   The juvenile court also ordered the department to assess Alex's JV–505 form to determine his paternity status.

In mid-April 2011, the juvenile court convened the dispositional hearing.   Alex appeared with his attorney and advised the juvenile court that he was not receiving visitation.   The juvenile court ordered the department to provide reasonable supervised visitation and continued the hearing.

At the continued dispositional hearing, two weeks later, county counsel asked the juvenile court on behalf of the department to suspend visitation between Alex and Julian because they did not have a relationship and it would be detrimental to Julian.   County counsel advised the juvenile court that the department had prepared and would file a Judicial Council JV–180 form ⁶ on that issue.   County counsel also advised the juvenile court that the department had evaluated Alex's JV–505 form and concluded that he had not provided sufficient evidence to establish himself as Julian's presumed father.   The juvenile court temporarily suspended visitation and set a contested hearing to adjudicate disposition, paternity and visitation.

Meanwhile, the department filed the JV–180 form asking the juvenile court to modify its previous order for visitation and issue a no-visitation order.   As evidence of changed circumstances warranting the modification, the department declared that Julian had not had any contact with Alex since his removal in October 2008, and that Alex had not requested visitation until Julian's second removal in January 2011.   The department opined it would be detrimental to initiate visitation between Alex and Julian because they did not have a relationship and there was not a plan of reunification in place.

The department also filed its dispositional report recommending that the juvenile court terminate mother's reunification services as to Julian, deny mother and Juan reunification services as to J., deny Alex reunification services as to Julian and set a section 366.26 hearing as to both children.   In addition, the department reported that mother and Alex ended their relationship prior to Julian's birth in 2005 and, after Julian's birth, Alex visited Julian but never lived with him.   In the same report, however, the department stated that mother and Alex ended their relationship shortly after Julian was born.

Alex, through his attorney, filed an issue statement asking the juvenile court to elevate him to presumed father status and order visitation.   In addition, Alex challenged the department's assertion that Julian did not know him and advised the juvenile court that the paternity inquiry filed in March 2011 was returned indicating that an order issued in March 2009 identified Alex as Julian's parent.

In June 2011, the juvenile court conducted a contested hearing on the combined issues.   Mother did not appear.   Alex testified that he was living with mother at the time of Julian's birth and they took Julian home with them.   He did not sign the birth certificate, although he had intended to do so.   He said he lived with mother for another six months but left because the relationship failed.   Thereafter, he visited Julian on weekends but did not attempt to gain custody of him.   His attorney asked him if he was aware that mother had reported to the social worker that they broke up before Julian was born.   He testified he was not aware of her statement and did not agree with it.   He said he was aware that Julian was the subject of dependency proceedings.   He did not attend the hearings because he did not feel it was necessary as he was always able to see Julian.   Alex's attorney showed him pictures and asked him to identify Julian and himself.   Alex testified that the pictures were taken in the spring and summer of 2009 and depicted Alex and Julian at the zoo and role playing.   Alex also identified a picture of Julian, J., and himself taken shortly after Christmas of 2009.

Alex further testified that Julian lived with him between parole violations, for which he was incarcerated almost continuously from November 2007 to April 2009.   During those times he said he provided for Julian the best he could.

Alex also testified that Julian lived with him while mother was pregnant with J. and while Julian was in departmental custody.   Asked whether he told people that Julian is his son, he responded, “Yes. [¶] Everybody knows.   I mean, it's no secret.   I mean my family, everybody I come in contact with that are—it's my son.”   He said he never provided child support but bought Julian clothes.

Alex also testified that Julian calls him “daddy” and that they have a “great relationship.”   He said he had been out of custody since February 2011 and was on parole.   As a condition of parole, he was not allowed to have contact with mother.

On cross-examination, Alex testified he was on parole for making criminal threats.   He said he was arrested in November 2007 for possessing gang paraphernalia.   He was released but placed in a program until June 2008.   He violated parole again in June 2008 for having contact with a gang member and was incarcerated until April 2009.   He was out of custody until January 2010 when he was arrested for having contact with mother.   In November 2010, he was arrested for absconding.   He testified that between parole violations he lived with Julian at the home of Julian's maternal grandmother.   During that time he was attending the university and receiving financial aid.

Following Alex's testimony, his attorney made an offer of proof, which was accepted, that mother would confirm Alex's representation of his relationship with Julian and the times that he lived with Julian.

Lindsey Vernooy testified that she had been Julian's social worker since June 2009.   She could not recall ever asking mother if Alex lived with Julian.   She said she was present when Julian was shown pictures of Alex. She said Julian recognized Alex in the pictures and smiled.   Having witnessed Julian's reaction, she said it appeared he knew Alex.

Vernooy did not believe, however, that Alex should receive visitation because Julian had been a juvenile dependent for over 30 months and in an adoptive home since May 2011.   She did not believe it would serve Julian's best interest to have visits when a permanent relationship with Alex was not possible.   She said that Julian was happy where he was and wanted to stay there.   She acknowledged that Julian referred to Alex as “father” but said he also called Juan “Dad” and his foster father “Daddy.”   She said Julian did not ask for Alex or discuss him.   She acknowledged that in June 2009 she asked Julian who his father was and he said “Alex.”

Following testimony and argument, the juvenile court took the matter under submission and set a hearing for its ruling.   At that hearing, conducted in July 2011, the juvenile court denied Alex presumed father status, but ordered the department to provide him visitation once a month.   The juvenile court also denied mother and Juan reunification services and set a section 366.26 hearing as to Julian and J.

In denying Alex presumed father status, the juvenile court found insufficient evidence that Alex received Julian into his own home and openly held him out as his son.   The juvenile court also discussed at length Alex's failure to establish paternity in a timely manner and demonstrate a parental commitment to Julian.   The court stated:

“[Alex] was noticed early on in this proceeding, and had an attorney appointed to [represent him], and by his own admission, [Alex] basically stood on the sideline waiting to see what was going to happen.   He did not take prompt action to request visits or contact with Julian.   He did not sign a voluntary declaration of paternity at the time of Julian's birth or any time thereafter.   There was no request for early action to submit to paternity genetic testing through this court.   And I don't find that he's provided by the standard of evidence required to show that he had received Julian into his own home openly and openly held him out as his own.

“[Alex] knew that Julian had been removed from the mother and was in the care of the [department] for over two years and, again, did not promptly step forward to assert or assume any parental responsibility or timely take necessary steps for this court to find that it's in the minor's best interest to elevate him to presumed [father].”

Alex filed a writ petition challenging the juvenile court's order setting the section 366.26 hearing.  (Cal. Rules of Court, rule 8.450.)   We stayed that hearing pending our further order.

DISCUSSION

I. Presumed Father Status

Alex contends that he qualifies as Julian's presumed father by virtue of the March 2009 paternity judgment which, he argues, is the legal equivalent of a voluntary declaration of paternity under Family Code section 7611.   He also argues that he qualifies as Julian's presumed father because he received Julian into his home and held him out as his own child under Family Code section 7611, subdivision (d).  We disagree.

In California, the statutes governing dependency proceedings differentiate the rights of presumed and biological fathers.  (In re Zacharia D. (1993) 6 Cal.4th 435, 448 (Zacharia D.).)  “A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status․”  (Id. at p. 449, fn. 15.)   A presumed father is one who meets any one of the conditions for paternity set forth in Family Code section 7611.  (Id. at p. 449.)

“[O]nly a presumed, not a mere biological, father is a ‘parent’ ” under the Uniform Parentage Act (Fam.Code, § 7600 et seq.).  (Zacharia D., supra, 6 Cal.4th at p. 451.)   Consequently, designation as a presumed father confers on a man the greatest paternity rights.  (Ibid.) It entitles him to custody of his child.  (Ibid.)

Family Code Section 7611

Family Code section 7611 sets forth the conditions under which a man may achieve presumed father status.⁷  If, as here, he neither legally married nor attempted to legally marry the child's natural mother, then he can achieve presumed father status only if he received the child into his home and openly held the child out as his natural child, or, along with the natural mother, executed a voluntary declaration of paternity.  (Fam.Code, §§ 7611, 7573.)

A. Voluntary declaration of paternity

A man is presumed to be the natural father of a child if he files a voluntary declaration of paternity.  (Fam.Code, §§ 7611, 7573.)   To be valid, the declaration must be signed by the mother and the father.  (Id., § 7574, subd. (b)(1), (2).)   By completing and signing the voluntary declaration, the man is declaring that he is the child's biological father and that he consents to the establishment of paternity.  (Id., subd. (b)(6).)   The natural mother, by her signature, is declaring that the man signing the declaration is the “only possible father.”  (Id., subd. (b)(5).)

Alex concedes that he could have attained presumed father status by filing a voluntary declaration but argues it was unnecessary because the March 2009 paternity judgment is the legal equivalent of the voluntary declaration.   This same issue was raised and rejected in In re E.O. (2010) 182 Cal.App.4th 722 (E.O.).   We concur in the analysis and conclusion and that decision.

In E.O., N.M. requested presumed father status based on a paternity and child support judgment.  (E.O., supra, 182 Cal.App.4th at p. 724.)   The judgment was not the result of a voluntary declaration of paternity.   (Ibid.) On appeal, N.M. argued that his failure to satisfy any of the categories set forth in Family Code section 7611 was irrelevant because the paternity judgment declared him to be the children's father.  (E.O., at p. 727.)

The court in E.O. distinguished the public policy objectives of the paternity judgment and voluntary declaration, explaining,

“A paternity judgment is, as the name implies, a judicial determination that a parent-child relationship exists.   It is designed primarily to settle questions of biology and provides the foundation for an order that the father provide financial support․  Presumed father status, by contrast, is concerned with a different issue:  whether a man has promptly come forward and demonstrated his ‘ “full commitment to his paternal responsibilitiesemotional, financial, and otherwise.” ’  [Citation.]”  (E.O., supra, 182 Cal.App.4th at pp. 727–728.)

Ultimately, the court in E.O. rejected N.M.'s argument as fundamentally unsound:  “A prior paternity judgment is simply not one of the ways set forth in Family Code section 7611 that a man can achieve presumed father status.”  (E.O., supra, 182 Cal.App.4th at p. 727.)

Echoing this same conclusion, another court stated:  “The difference between a judgment of paternity arising from a voluntary declaration of paternity and a judgment of paternity not arising from such a declaration is that [Family Code] section 7611 expressly recognizes the former type as establishing presumed fatherhood.”  (In re Levi H. (2011) 197 Cal.App.4th 1279, 1290.)   To conclude that there is no practical difference between the two would “ignore the express language of [Family Code] section 7611.”  (Ibid.)

Similarly, we conclude that Family Code section 7611 does not confer the presumption of paternity based on a paternity judgment.   Consequently, we reject Alex's claim to the presumption on that basis.

B. Receiving a child into the home and holding the child out as one's

own

Under Family Code section 7611, subdivision (d), a man is presumed to be the father of a child if he “receives the child into his home and openly holds out the child as his natural child.”   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.  (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)

Alex contends that he proved the foundational facts, citing evidence that he lived with Julian from the time of Julian's birth cumulatively, though not consecutively, for over 15 months, provided him support, never doubted his paternity, and had an ongoing relationship with Julian.   The juvenile court, however, found that Alex failed to meet his burden of proving that he received Julian into his home and held him out as his natural child.

“[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.  [Citations.]  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.’   [Citation.]”  (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.).)

In this case, the evidence would permit the juvenile court to conclude, at a minimum, that Alex did not receive Julian into his home.   There was contradictory evidence as to whether Alex and mother even had a relationship at the time of Julian's birth.   Further, Alex provided conflicting evidence as to how long he lived with the mother after Julian was born.   In his JV–505 form, Alex attested that he lived with Julian from birth until he (Alex) was incarcerated in 2007.   Alex testified, however, that he lived with Julian for six months following Julian's birth.   Six months from Julian's birth in December 2005 would be approximately June 2006.   According to the record, Alex was incarcerated in 2006 for making terrorist threats.⁸

As the trier of fact, the juvenile court is the “exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence,” including the testimony of a witness.  (I.W., supra, 180 Cal.App.4th at p. 1528.)   Consequently, the court was entitled to reject Alex's testimony entirely as lacking credibility.  (Ibid.)

Further, the juvenile court was entitled to consider evidence of what Alex did not do in determining whether he received Julian into his home and held him out as his own.  (In re T.R. (2005) 132 Cal.App.4th 1202, 1211.)   For example, Alex did not sign Julian's birth certificate, file a voluntary declaration or pay child support.   He never moved for shared custody of Julian or appeared at any of the hearings that occurred during over two years of dependency proceedings.   He filed no appeal after being denied reunification services—a denial, which, pursuant to section 361.5, subdivision (a), was tantamount to a denial of presumed father status.   Because the department makes no such assertion, we refrain from considering whether Alex forfeited the opportunity to seek presumed father status by failing to appeal this denial.   Simply put, Alex never took any legal responsibility for Julian.

In dependency proceedings, “the purpose of section 7611 ․ is to determine whether the alleged father has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathers․”  (In re Jerry P. (2002) 95 Cal.App.4th 793, 804, italics omitted.)   The essence of presumed fatherhood is the establishment of a substantial parent-child relationship, where the presumed father has fully embraced the responsibilities of parenthood”emotional, financial, and otherwise—” and has consistently acted in a parental role toward the child.   (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.)   Alex did not present any evidence that he ever made a “full commitment” (ibid.) to his parental responsibilities toward Julian.   Accordingly, the evidence did not compel a conclusion that Alex qualified as Julian's presumed father under Family Code section 7611, subdivision (d) as a matter of law.

II. Visitation

Alex contends that the juvenile court's visitation order was untimely and deprived him of the ability to argue at the section 366.26 hearing that terminating parental rights would be detrimental to Julian.   Consequently, he further contends the juvenile court's visitation order resulted in prejudicial error.   We disagree.

Alex's challenge to the juvenile court's visitation order is faulty on two foundational grounds.   First, as Julian's biological father, Alex was not entitled to visitation.  (Zacharia D., supra, 6 Cal.4th at p. 449.)   Second, the juvenile court has broad discretion in fashioning visitation orders in performing its duty to protect the welfare and best interests of the child.   (In re Neil D. (2007) 155 Cal.App.4th 219, 225.)

In this case, the evidence was that Alex had not been involved in Julian's life and that Julian did not know him.   Therefore, the juvenile court properly concluded that visitation would be detrimental.   Once the court heard evidence to the contrary, it ordered visitation.   On this record, there was no abuse of discretion.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.   The stay order filed in this court on October 25, 2011, shall remain in effect until the opinion is final in all courts of this state or until further court order.

CORNELL, Acting P.J.

WE CONCUR:

DAWSON, J.

DETJEN, J.

FOOTNOTES

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

FN2. Mother did not file a writ petition..  FN2. Mother did not file a writ petition.

FN3. The appellate record begins chronologically with the supplemental petition filed in January 2011.   Therefore, it does not contain information concerning the circumstances surrounding Julian's initial removal, such as the original dependency petition (§ 300), departmental reports and minute orders or recorded transcripts of the hearings, with one exception—it contains the reporter's transcript of the dispositional hearing conducted on March 13, 2009.   Consequently, we infer from information in the record before us that mother identified both Juan and Alex as Julian's alleged fathers..  FN3. The appellate record begins chronologically with the supplemental petition filed in January 2011.   Therefore, it does not contain information concerning the circumstances surrounding Julian's initial removal, such as the original dependency petition (§ 300), departmental reports and minute orders or recorded transcripts of the hearings, with one exception—it contains the reporter's transcript of the dispositional hearing conducted on March 13, 2009.   Consequently, we infer from information in the record before us that mother identified both Juan and Alex as Julian's alleged fathers.

FN4. Judicial Council of California form entitled “Statement Regarding Parentage (Juvenile).”.  FN4. Judicial Council of California form entitled “Statement Regarding Parentage (Juvenile).”

FN5. Section 361.5, subdivision (a) provides, in pertinent part, that the juvenile court “shall” order reunification services for a statutorily presumed father.   It further provides:  “Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.”.  FN5. Section 361.5, subdivision (a) provides, in pertinent part, that the juvenile court “shall” order reunification services for a statutorily presumed father.   It further provides:  “Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.”

FN6. Judicial Council of California form entitled “Request to Change Court Order.”.  FN6. Judicial Council of California form entitled “Request to Change Court Order.”

FN7. Family Code section 7611 provides:“A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or 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.“(e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure.   This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.“(f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.”.  FN7. Family Code section 7611 provides:“A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or 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.“(e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure.   This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.“(f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.”

FN8. Alex did not testify to this fact and the department did not provide the juvenile court details of petitioner's criminal history.   Nevertheless, this fact appears as a statement in the department's dispositional report, which was received in April 2011 and filed in July 2011 and apparently entered into evidence without objection..  FN8. Alex did not testify to this fact and the department did not provide the juvenile court details of petitioner's criminal history.   Nevertheless, this fact appears as a statement in the department's dispositional report, which was received in April 2011 and filed in July 2011 and apparently entered into evidence without objection.