Summary
looking to factors such as a purported father's presence on the birth certificate, providing a home, providing economic support, and establishing a relationship with the child
Summary of this case from Mena v. United StatesOpinion
F054935
9-3-2008
In re K.M., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. S.M., JR., Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
In this dependency case, appellant S.M., Jr., (hereafter S.M.) sought presumed father status of K.M., the minor child, claiming he received her into his home and openly held her out as his natural child. The juvenile court denied presumed father status to S.M. We will affirm the juvenile court order.
FACTUAL AND PROCEDURAL SUMMARY
In 2004, A.M. gave birth to a son, C.M., whose father is S.M. At birth, C.M. and A.M. tested positive for marijuana.
In 2005, A.M. began dating Marcus, but she also continued to see S.M.
At the time of K.M.s birth in 2006, both K.M. and her mother, A.M., tested positive for amphetamines. According to S.M., he called A.M. at the hospital the day of K.M.s birth and visited the next day. S.M. believed there was a possibility he was K.M.s biological father. Hospital records showed that A.M. reported that K.M.s father was not involved, the father was listed as "unknown," and A.M. had no visitors. S.M.s grandmother testified that when K.M. was born, S.M. told her that he did not know whether K.M. was his biological child.
Following K.M.s birth, A.M. and her two children lived with A.M.s parents for about a year but then had to leave. For the following three months, A.M. and the two children lived in various motels. Testimony differed as to whether A.M. or S.M. paid for the motel rooms, but the rooms were in A.M.s name.
In October 2006, A.M. obtained a restraining order that prevented S.M. from being around her or the children. The order was valid from October 26, 2006, to October 26, 2009.
S.M. claimed he lived with A.M. and the children for two weeks in the motel room before moving out and that he took care of the two children when A.M. was away from the motel room and when she was using controlled substances. Eventually, A.M. and her children moved into an apartment. S.M. did not spend holidays with K.M. in 2006 because she was an infant; in 2007 he was in jail during the holidays.
On August 30, 2007, police responded to A.M.s apartment due to reports of yelling and a baby crying. Controlled substances were found in the apartment, along with K.M., and A.M. was charged with child endangerment and possession of controlled substances. Over the next few months, A.M. admitted using methamphetamine and that she and S.M. had a history of domestic violence.
In October 2007, child protective services removed K.M. and C.M. from the custody of their mother, A.M., and dependency proceedings were initiated. K.M. and C.M. were made dependents of the juvenile court. At this time, S.M. had not seen K.M. since September 21, 2007, and he believed the possibility was "slim" that K.M. was his daughter.
A.M. testified that Marcus, not S.M., was K.M.s father and that she had not been in a relationship with S.M. at or since the time K.M. was born. She stated that she told S.M. she and Marcus were in a relationship, but S.M. kept coming around.
In January 2008, S.M. submitted to DNA testing and it was determined that he was not K.M.s biological father. When Marcus refused to submit to DNA testing, S.M. sought presumed father status.
At a contested hearing on the motion for presumed father status, S.M. asserted that he had received K.M. into his home when he rented a motel room and lived there for two weeks with K.M. and her mother. He also maintained that he openly held K.M. out to be his child when he told family members that she might be his biological child and he treated her as his own daughter.
The juvenile court denied S.M.s motion for presumed father status, finding (1) S.M. had not openly received K.M. into his home by virtue of renting a motel room for K.M. and A.M., and (2) he had not held K.M. out as his natural child because he told his grandmother she might not be his biological child.
DISCUSSION
Standard of Review
There is a difference of opinion as to the appropriate standard of review of a lower courts determination of presumed father status. Some appellate courts hold that the substantial evidence standard applies. (See Miller v. Miller (1998) 64 Cal.App.4th 111, 117-118 (Miller); In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650 (Spencer W.); In re Sarah C. (1992) 8 Cal.App.4th 964, 972-973.) Under this standard, we "review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. `We do not reweigh the evidence but instead examine the whole record to determine whether a reasonable trier of fact could have found for the respondent. [Citation.]" (Miller, at pp. 117-118.)
In In re Kiana A. (2001) 93 Cal.App.4th 1109, 1116 (Kiana A.), however, the court refers to "abuse of discretion" with respect to the juvenile courts determination of presumed father status. An abuse of discretion exists where the juvenile court "`has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. [Citation.]" (In re Arthur C. (1985) 176 Cal.App.3d 442, 446.)
We, however, need not decide which standard of review is applicable in this case because under either standard we conclude there was no error.
Analysis
"The Uniform Parentage Act (the Act), originally adopted as Civil Code section 7000 et seq. and reenacted without substantive change as Family Code section 7600 et seq., establishes the framework by which California courts make paternity determinations." (Kiana A., supra, 93 Cal.App.4th at pp. 1113-1114.) Family Code section 7611 (all further statutory references are to the Family Code unless otherwise noted) lists several rebuttable presumptions of paternity. As relevant here, they include where a man receives a child into his home and acknowledges the child as his natural child. (Id., subd. (d).) As explained by our Supreme Court, "a man who has neither legally married nor attempted to legally marry the mother of his child cannot become a presumed father unless he both `receives the child into his home and openly holds out the child as his natural child. (§ 7611, subd. (d), italics added.) ... Therefore, to become a presumed father, a man who has neither married nor attempted to marry his childs biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home." (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.) "[A] presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence." (§ 7612, subd. (a).)
In a dependency proceeding, only a presumed father is entitled to reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) S.M. claims he is the presumptive father of K.M. under section 7611, subdivision (d). S.M. bore the burden of demonstrating by a preponderance of the evidence that he met the criteria. (Walsh v. Palma (1984) 154 Cal.App.3d 290, 293.)
Respondent Stanislaus County Community Services Agency contends that S.M. did not satisfy the presumed father requirements because (1) he never received K.M. into his home, but merely stayed with her briefly in motel rooms he partly may have paid for; (2) he was in and out of K.M.s life; (3) he treated K.M. differently than his natural child, C.M.; and (4) he did not unequivocally claim K.M. as his child.
The cases discussing this presumption base the requirement that a man "`openly and publicly admit paternity" on facts showing that the man has demonstrated a "commitment toward developing a `substantial familial relationship to the child." (Spencer W., supra, 48 Cal.App.4th at pp. 1653-1654, 1655; see also In re Jerry P. (2002) 95 Cal.App.4th 793, 806-807 [man holds himself out as childs father, as required under § 7611, subd. (d), by promptly coming forward and demonstrating full commitment to childs welfare—emotional, financial and otherwise].) Such a showing may be made by the man having his name placed on the childs birth certificate, providing a home for the child, providing economic support, and establishing a relationship with the child. (See, e.g., Spencer W., at pp. 1654-1655; Miller, supra, 64 Cal.App.4th at p. 118.) S.M. did none of these.
S.M. was not listed on K.M.s birth certificate and apparently made no effort to be listed as her father. S.M.s comment to his grandmother was that he did not know whether K.M. was his child. This is hardly an unequivocal "holding himself out" as K.M.s father.
There is no evidence that S.M. provided any financial support for K.M. during the first year of her life.
S.M. did not accept K.M. into his home at any time. K.M. lived with her grandparents for about one year after her birth and referred to that grandfather as "daddy." For a brief amount of time, K.M. lived in a motel room she shared with her mother and S.M. A.M. testified the motel rooms were in her name because S.M. did not have identification.
S.M. clearly did not demonstrate a commitment to developing a "`substantial familial relationship" with K.M. (Spencer W., supra, 48 Cal.App.4th at pp. 1654-1655.) S.M. had not seen K.M. for many months at the time of the juvenile courts decision on his motion. S.M. made no attempt to spend holidays or pay regular visits to K.M. because she was an "infant."
There was no error by the juvenile court.
DISPOSITION
The order is affirmed.
WE CONCUR:
VARTBEDIAN, Acting P.J.
KANE, J.