Opinion
A112609
12-1-2006
In re HUNTER N., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. L.C., Defendant and Appellant.
L.C. is the biological father of Hunter N. Father appeals from the order denying his motion pursuant to Welfare and Institutions Code section 388 by which he sought to be upgraded to the status of presumed parent, and thus entitled to reunification services. He also appeals from the order terminating his parental rights pursuant to section 366.26. Although framed in differing ways, there is in essence only one contention that Father presses here, that the juvenile court abused its discretion in denying his motion. We find no abuse, and affirm both orders.
Statutory references are to this code unless otherwise specified.
BACKGROUND
On September 8, 2004, the Alameda County Social Services Agency (Agency) filed a petition seeking to have Hunter declared a dependent child within the meaning of section 300. The gist of the Agencys petition was that Hunters mother was "delusional and schizophrenic," as evidenced by the mothers behavior when she came to take Hunter home from the hospital days after he was born. Custody of the baby was not given to her because she "[has] a history of psychological problems and has been hospitalized in the past year. She is diagnosed with schizophrenia and depression but refuses to take medication. The mother presents . . . a danger to her newborn baby and is not capable of providing care for the baby." The Agency alleged in the petition that the "actual identity . . . of the father . . . is unknown," but the Agency did note that Father "is stating that he is the alleged father."
The next day, September 9, 2004, and as requested by the Agency, the juvenile court ordered Hunter detained. The Agencys detention report to the court identifies Father as "the alleged father." However, the mother "did not put a fathers name . . . on the birth certificate." Father is quoted as "believ[ing] that he is the father because the child looks like him," and being "willing to do a paternity test."
Father was present at the detention hearing. His counsel stated: "I would be asking for the Court to order a paternity test. The father does believe that he is the biological father and should have presumed father status." The court did not order a test but, with the help of the social worker, advised father what to do: go to the Department of Child Support Services, located on the corner of "13th and Webster" in Oakland, "[a]nd tell them that he is requesting a paternity [test] . . . and they will begin the process." The jurisdictional hearing was set for September 21, 2004.
Father was present with counsel at that hearing. At Fathers request, the hearing was continued to September 29, 2004. Fathers counsel made another request, "for the Agency to make a referral to the Child Support Division of the D.A.s office so that my client can take a paternity test." Counsel had followed the courts suggestion and been told by "the supervising attorney . . . that at this point in time, his office does have an open case for a sibling of the minor . . . [b]ut in order to do a paternity test for Hunter, a case has to be open and . . . the three parties . . . have to be made available for the paternity test. He said the normal procedure is for the Agency . . . to make a referral for the new minor, and thats what Im asking for the Agency to do."
After being advised that a "case" would be opened, the court stated: "Im sure that theres a protocol established. If you have documentation that says that there needs to be a referral from Social Services Agency to [implement] that blood testing and you provide that to Social Services Agency, I do not see why that will not be accomplished." The court asked counsel for the Agency "Is there a problem with that?" to which counsel replied, "I dont see any problem with that . . . Im sure the Agency has no objection."
Father was present at the September 29 jurisdictional hearing. Both he and Hunters mother submitted the jurisdictional issue on the basis of the documentation before the court. The court was advised that the issue of the paternity test would remain in abeyance until the court established jurisdiction over Hunter, at which point the Agency would make the referral that would start the process. The court then sustained the allegations of the Agencys petition, and ordered reunification services provided to Hunter and the mother, but not "to [the] alleged father . . . unless he establishes a legal basis."
Father was not present at an interim review hearing conducted in December 2004, when the court adopted the Agencys recommendation that Hunters placement be changed to his maternal grandmother, who lived in Hawaii. Within a month of the placement, the grandmother expressed a willingness to adopt Hunter.
Father was not present when the six-month review was held on March 7, 2005. There, the court adopted the Agencys recommendation that the termination process be started, and directed the Agency to finalize a permanent plan for Hunter and to prepare parental assessments required by section 366.21, subdivision (i) for a termination hearing that was set for June 29, 2005.
In its report for the termination hearing, the Agency advised the court that Hunter was doing well in his placement with his grandmother, who was the proposed adoptive parent. The Agency recommended termination of both parents rights.
The hearing on June 29, 2005, opened with counsel for the Agency asking the court for a continuance because notice had not been given to Father: "At the last court hearing, an address was provided for the father and we have been unable to serve him at that address . . . Although notice was mailed to him, he has not been personally served." The court authorized service on Father "by publication or through his attorney," and continued the hearing to September 1, 2005.
Father was present at the September 1, 2005 hearing. The day before the hearing, Father filed a "Petition For Determination of Paternity." The basis for the petition was that the juvenile court had not complied with the mandatory duty imposed by section 316.2 and given him the opportunity to prove his paternity, an omission aggravated by the Agencys failing to interview him "about his viability to [act] as a custodial parent" for Hunter. The court opened the September 1 hearing by stating "I want to hear from everybody as to what is the most appropriate way to proceed, given this somewhat unexpected development." After hearing extensive argument from counsel, the court decided to hear testimony from Father as to "where the father . . . has been and why he hasnt pursued this opportunity prior to yesterday."
After the declaration accompanying his petition was received in evidence, Father took the stand and testified at length concerning his whereabouts following Hunters birth. While at the time of Hunters birth Father told the Agency his address was on Pearl Street in Oakland, that was his mothers home and he was actually living in East Palo Alto with his brother. Shortly after Hunters birth, Father moved to an El Camino Real address in Redwood City. From mid-October to mid-November of 2004, Father was incarcerated in another county, although he did not tell his counsel or the Agency. Under questioning by the court and Hunters counsel, Father conceded he was present at the jurisdictional hearing in September 2004, when he was ordered to be present at the December 2004 and March 2005 hearings, neither of which he attended.
Although Father testified that no one from the Agency told him about paternity testing, he acknowledged this was contrary to what he stated in his declaration. Father stated in his declaration that "I did everything in my power to get the paternity test done without the assistance of the court or [the agency]," but he admitted on the stand that he did nothing after he received a letter in December 2004 asking him to get in touch with the Agency "to find out how to do paternity testing."
At the conclusion of the hearing, the court ordered the Agency and Father to get it done: "I am going to order that the Agency complete the procedure for testing [Father] for paternity with respect to the minor in this manner. [¶] . . . [¶] . . . You [Father] are being ordered now to do what is necessary, what is required by the Agency to complete the testing process." The hearing was continued to September 30.
On September 30, 2005, the court granted the Agencys request for a 60-day continuance because Father could not be tested before October 20. The court ruled as it did "reluctantly," because "were stuck with whatever we can best get accomplished by way of ascertaining that as soon as possible." The hearing was continued to December 1.
Prior to the December 1 hearing, the paternity test established a likelihood of 99.92% that Father was the biological parent of Hunter. One day before the hearing, Father filed a motion pursuant to section 388, seeking modifications of the courts existing orders, specifically modifications that would give him custody of Hunter and direct the Agency to provide him with reunification services.
At the December 1 hearing, the court began by noting the paternity test result. Without objection from any of the parties, the court ruled that Father "is declared the bio[logical] father and he has the right to participate in the [termination] hearing that has been scheduled." The court then heard argument as to whether Fathers section 388 motion was timely, and whether to grant Fathers request that the termination hearing be continued. The court ruled that Fathers motion would be treated as timely, and would be heard "before we reach the issue of the .26 hearing."
Father then took the stand and testified as follows: He now lives with his girlfriend at an apartment in Oakland, which is where Hunter would also live if his custody were given to Father. Hunter would have a bedroom he would share with his brothers Kaleo (currently living in Hawaii) and Tejon. Father first became aware that Hunters mother was pregnant around January 2004, when they were living together. The mother was in a mental hospital until April of that year. When Hunter was about to be born, Father took the mother to the hospital. Father told "the nurse" and "the doctor" that the baby was his. At this point the hearing was adjourned to the next day.
Father resumed testifying on December 2. Once Hunter was born, Father left the hospital to buy diapers and such. By the time he returned, the mother had already "signed the birth certificate," omitting Fathers name. Father "went into the incubator [sic] and held my son and talked with the nurse." The nurse provided him with an armband, which identified him as the father. At the hospital Father saw his godmother, Betty F., and told her that he was the father. He also told "my mom and dad" and "people that were close to me." However, Father was not allowed to leave with Hunter because the Agency was already involved and had placed "a protective hold" on the child. An Agency employee told him he could not see Hunter because "Im only the alleged father and I need to get a paternity test before I can have any rights to see the baby."
Father further testified that from September 2004 until October 2005 (when the test was finally performed), he did not recall any conversation with any Agency worker about the Agency facilitating a paternity test for him. Father wanted custody of Hunter and reunification services, and was ready to shoulder the emotional and financial responsibility for raising Hunter.
Father also initially denied proof from the Agency that he was informed in writing in late September 2004 that the best way to expedite a paternity test for Father was to request it from the Child Support Division.
Father admitted on cross-examination that he had a felony conviction in 2003 and was still on probation. He also admitted that he lost custody of his eldest son, Tejon, when he and the childs mother separated, and that he lost custody of Hunters brother Kaleo when their mother (who is also Hunters mother) took him to Hawaii and left him with his grandmother. Kaleo is currently under a Hawaiian court guardianship. Father is not content with either Kaleo (to whom he has talked but not actually seen since 2000) or Hunter being raised by their grandmother.
Even though it would mean taking Hunter from the only home he has had since birth, Father testified: "It would be in his best interest for him to return [sic] to me because as his father, hes going to want to know who his father is, hes going to want to know who his mother is, and hes been substituted by both throughout his life since hes been in the world and thats why I came to court this time trying to get him back because Ive been absent from his life and he needs me. [¶] He wasnt born to the grandmother, he wasnt born to CPS, but those are the two options that took place as he was born due to what was said by the mother and by the grandmother. And so Ive been this whole time trying to get my son back to where we can bond." Father wanted Hunter even if it means separating him from his brother.
Father, who currently does day work for a carpet cleaner, conceded that he has never offered to pay support for Hunter, even after knowing the results of the paternity test. He has never paid support for Kaleo, and has provided only about half of the support he is under order to pay for Tejon. Nevertheless, Father testified that he is willing now to undertake the full financial support for all three children. When asked about a copy of the letter from the Agency about paternity testing (see fn. 2, ante), Father testified that the author of the letter did in fact communicate the substance of its contents to him outside a courtroom in September 2004. However, Father did not follow this recommendation "[b]ecause I felt that there were other methods of obtaining a paternity test."
Agency social worker Sue May testified that, from the one time she observed Hunter and his grandmother at a park, he appeared happy and attached to his grandmother. The Agency had not assessed Fathers home.
After hearing lengthy argument from counsel concerning Fathers motion, the court adjourned the hearing to December 8 for further argument. On December 8, the court heard additional argument, and then ruled as follows:
"[T]his is a difficult case to line up in some kind of logically consistent way and to give proper weight to the interests of the various parties here. Ultimately, there is no satisfactory way to do it, at least not in my opinion.
"There is, I think most people here in the courtroom would concede, some due process rights of Mr. [C.] that have possibly not been accorded their full weight. There is, on the other hand, the interest of a child in permanency, stability, and a life that will permit him to grow and flourish in those conditions.
"In the facts of this case, those two interests are at odds. There is no way around it. And so I have to figure out some way to come to an understanding of which is more weighty and which needs to be sacrificed to the other.
"Having reviewed the evidence, including the testimony of Mr. [C.], and having thoroughly reviewed the legal authority thats been cited to me, my conclusion is that Mr. [C.] has not met his burden of showing that it would be in Hunters interest, and it would be consistent with Hunters welfare overall, to grant the 388 petition that he has filed.
"There are significant differences between the cases cited to me by Mr. [C.] . . . and the facts of this case. It is true that Mr. [C.], as we have discussed at great length in this hearing, was present and asserting his rights in the early portion of this case. It is also true that Mr. [C.] has not been present in this case since for approximately twelve months. Twelve months that were of great significance to the child, of course.
"Now, Mr. [C.] will argue Im sure in this case as it goes forward that his absence from the childs life was due to the Courts activities or lack of activities and not his own fault and thats a valid argument. But I think in the end, when were talking about the welfare and interests of a child who is all of fifteen months old, it is not an argument for us today.
"So, based on the entire record and the authorities that have been cited to me . . . the 388 petition is denied.
"Now, the question is procedurally what comes next and, if I understand the posture of the case, we are then at the juncture of considering the Agencys recommendations or the Agencys request for a hearing pursuant to Section 366.26 . . . ."
The court then, without objection, received the Agencys report and recommendation in evidence. No further evidence was offered by any party. After hearing brief argument, the court adopted the Agencys recommendation and terminated Fathers parental rights.
Father filed a timely notice of appeal from the order denying his motion and from the order terminating his parental rights.
DISCUSSION
I
We begin with two preliminary matters.
First, there is no doubt that Fathers motion was both timely and appropriate. "While a biological father is not entitled to custody under section 361.2, or reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, he may move under section 388 for a hearing to reconsider the juvenile courts earlier rulings based on new evidence or changed circumstances." (In re Zacharia D. (1993) 6 Cal.4th 435, 454, fn. omitted.)
Second, it is apparent that what Father wishes reviewed is the denial of his motion: the notice of appeal states that he appeals from the order denying his motion and the order terminating his parental rights. An order denying a motion made pursuant to section 388 is appealable (Cal. Rules of Court, rule 1435(b); In re Shirley K. (2006) 140 Cal.App.4th 65, 71), as is an order terminating parental rights. (Fam. Code § 7894, subd. (c); In re Janee J. (1999) 74 Cal.App.4th 198, 206.) Nevertheless, the Agency submits that Father may not appeal from the order denying his motion because he did not file a petition for an extraordinary writ allowed by section 366.26, subdivision (l) and California Rules of Court, rule 38.1. We do not agree.
The statutory authority cited by the Agency refers to orders setting a hearing to terminate parental rights. (§ 366.26, subd. (l)(l).) The order originally setting the termination hearing was made by the juvenile court on March 7, 2005. Father did not file his motion until November 30, 2005, more than eight months later. The motion was not actually denied until December 8, 2005, the same day his parental rights were terminated. We do not see how Father could have filed a petition challenging the denial of a motion he had not yet filed.
The Agency also argues that Fathers appeal from the order denying his motion is moot because he is not challenging the actual termination order. Thus, the Agency reasons, reversal of the denial order would still leave in place the termination order. Although there is an element of strict logic to this argument, we conclude that the unusual circumstances presented here do not establish mootness.
As shown above, we have paid particular attention elaborating those circumstances, to demonstrate that Fathers motion was inextricably entwined with the termination hearing. They were, to all intents and purposes, heard and decided at the same time. The motion was virtually "part and parcel of the order terminating parental rights." (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1251.) Given the thoroughness and sensitivity shown by the juvenile court on its ruling on Fathers motion, we have little hesitation in concluding that, if the court knew that its denial of Fathers motion would be found legally defective on appeal, it would not have entered the termination order, nor would it want the termination order to stand.
Accordingly, we deny the Agencys request that the appeal be dismissed, and proceed to Fathers arguments.
II
Section 388, subdivision (a) provides in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made . . . ." Review of the juvenile courts ruling on a petition or simple motion pursuant to this section is highly deferential. "The petition [under section 388] is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) In addition, although the motion can be made at the penultimate stage of a dependency proceeding, it only implicates a further dimension of consideration against reversal: " `[U]p until the time the section 366.26 hearing is set, the parents interest in reunification is given precedence over a childs need for stability and permanency. (In re Marilyn H. [(1993)] 5 Cal.4th [295,] 310.) `Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. . . . The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the "escape mechanism" that . . . must be built into the process to allow the court to consider new information. (Id. at p. 309.)" (In re Zacharia D., supra, 6 Cal.4th 435, 447.)
Father contends that the juvenile court abused its discretion because he satisfied the statutory criteria for presumed father status. We are not persuaded.
The concept of presumed fatherhood comes from the Family Code, which specifies the ways in which that status can be achieved. First, a man can be married, or try to have been married, to the mother, before or after the birth. (Fam. Code, § 7611, subds. (a)-(c).) Second, a man can execute a voluntary declaration of paternity. (Fam. Code, § 7571.) Third, a man can become a presumed father if "[h]e receives the child into his home and openly holds out the child as his natural child." (Fam. Code, § 7611, subd. (d).) Father claims that he met the requirements for the third way. He is mistaken.
In keeping with the plain statutory language just quoted, the courts have uniformly held that the child must actually enter the mans home. As this court held in Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585: "To meet the statutory requirement of receiving the child into the home . . . the child must physically be brought into the fathers home; constructive receipt is not sufficient." (Accord, Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825-830; In re Kyle F. (2003) 112 Cal.App.4th 538, 542; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1229; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)
The courts also recognize that there may be instances where "it may be impossible for him to do so, such as where the mother prevents it, or the county department of social services has taken custody of the child." (In re Andrew L. (2004) 122 Cal.App.4th 178, 191.) In such instances, actual receipt obviously cannot be demanded. Instead, "[t]he focus is on whether the natural father `has done all that he could reasonably do under the circumstances to demonstrate his commitment to the child." (Ibid., quoting Adoption of Kelsey S., supra, 1 Cal.4th 816, 850.) It is enough if the man "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise . . . . [¶] A court should consider all factors relevant to that determination. . . . In particular, the father must demonstrate `a willingness himself to assume full custody of the child—not merely to block adoption by others. [Citation.] A court should also consider the fathers 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." (In re Kelsey S., supra, at p. 849; see In re Julia U. (1998) 64 Cal.App.4th 532, 541 [applying Kelsey S. analysis to dependency/termination proceedings].)
Father places considerable reliance on In re Andrew L., supra, 122 Cal.App.4th 178, where the father made "timely, repeated efforts to establish paternity, which were thwarted by the social worker." (Id. at pp. 192-193.) Although the cited principle appears sound, the procedural posture of In re Andrew L. is decisively different. There, the juvenile court found in favor of the father as a presumed parent, and the Court of Appeal upheld that finding. Here, the juvenile court implicitly found that Father would not be recognized as a presumed parent. It thus presumably also found that Father had not been "thwarted" by the Agency in his efforts to establish his paternity of Hunter.
We have held that "It is the fathers burden to prove he is a presumed parent by a preponderance of the evidence." (Glen C. v. Superior Court, supra, 78 Cal.App.4th 570, 585-586.) The juvenile court having implicitly found that Father had not carried that burden, and on the basis of that finding denied Fathers section 388 motion, the task before us is to determine whether by doing so the court abused its discretion. It did not.
Clearly, the court was not required to accept Fathers testimony as credible. Even granting the truth of Fathers version of events at the hospital at the time of Hunters birth, there is ample basis from which the court could conclude that Father had not " `done all that he could reasonably do under the circumstances to demonstrate his commitment to the child." (In re Andrew L., supra, 122 Cal.App.4th 178, 191, quoting Adoption of Kelsey S., supra, 1 Cal.4th 816, 850.)
The court had before it testimony from Father that he had failed to attend crucial hearings, despite being ordered to do so by the court. Moreover, Fathers persistent habit of not informing the court, the Agency, or, indeed, his own counsel, of his actual whereabouts could be viewed as something less than a complete acceptance of parent responsibility. And his failure to pay the full amount of court-ordered support for his son Tejon, or any support for his son Kaleo, would hardly inspire confidence in his claim that he was ready to assume the financial responsibilities for raising all three of his children.
Father professed to wanting to have paternity determined at the earliest possible moment, yet his willingness was dependent on somebody else paying for the paternity test, or telling him precisely what to do and where to go. Father did nothing on his own initiative to resolve or expedite the matter of paternity. He did not file his "Petition for Determination of Paternity" until the dependency had been underway for a year. Nor did he execute a voluntary declaration of paternity. Even by the time of the termination hearing, after his paternity was accepted, Father had made no offer or attempt to pay for Hunters support or expenses. It was only at the time of the termination hearing that Father began making preparations for receiving Hunter into his home. In light of these circumstances, the juvenile court could conclude that Father had not promptly and unambiguously demonstrated "a full commitment to his parental responsibilities." (Adoption of Kelsey S., supra, 1 Cal.4th 816, 849; accord, In re Jesusa V. (2004) 32 Cal.4th 588, 610-611; Adoption of Michael H., supra, 10 Cal.4th 1043, 1060.)
The juvenile courts thoughtful ruling was quoted in its entirety to demonstrate that the court considered all pertinent legal factors, that it was fully acquainted with Fathers past actions and his present situation, and it recognized—correctly—that matters had progressed to the point where it was Hunters interests that were paramount. (In re Zacharia D., supra, 6 Cal.4th 435, 447.) The only real home Hunter had known was with his grandmother, who was willing to adopt him, and whose home was also the home of Hunters brother Kaleo. The courts decision not to sunder these bonds did not exceed the bounds of reason. It did not amount to an abuse of discretion. (In re Jasmon O., supra, 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Lastly, Father states in his reply brief that establishing that he was the biological father "was, in and of itself, a sufficient change of circumstances to warrant the granting of reunification services." No court has embraced this position, and it is not hard to understand why—it would be directly contrary to In re Zacharia D., supra, 6 Cal.4th 435, where our Supreme Court concluded that a fathers belated discovery of biological parenthood did not require granting the fathers motion under section 388. (Id. at pp. 455-456.)
III
Father also contends that the denial of his motion was a violation of his "Federal Constitutional Due Process Rights and Right to Parent His Child." This contention also fails.
Fathers constitutional interest as an unwed father "is merely inchoate [citation] and does not ripen into a constitutional right that he can assert to prevent adoption unless he proves that he has `promptly come[] forward and demonstrate[d] a full commitment to his parental responsibilities . . . . (Kelsey S., supra, 1 Cal.4th 816, 849.) This is so because `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. [Citation.] " (Adoption of Michael H., supra, 10 Cal.4th 1043, 1052.)
As shown by the preceding discussion, the juvenile court had a solid basis for concluding that Father did not promptly and unequivocally demonstrate a full commitment to being Hunters father. There was therefore no parental relationship, and consequently no constitutional violation.
DISPOSITION
The order denying the motion made pursuant to section 388 and the order terminating parental rights are affirmed.
We Concur:
Kline, P.J.
Lambden, J.