Opinion
A164902
06-29-2022
K.S., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF CONTRA COSTA, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J20-00506)
WISS, J. [*]
K.S. is the biological father of A.S. In this juvenile writ proceeding, K.S. seeks extraordinary relief from the juvenile court's dispositional order declining to grant reunification services to him as a biological father and setting a permanency planning hearing for A.S. pursuant to section 366.26 of the Welfare and Institutions Code. Specifically, K.S. argues that the juvenile court erred both in failing to declare him A.S.'s presumed father pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) and in otherwise refusing to order reunification services, including visitation, for him as a biological parent pursuant to section 361.5, subdivision (a). We deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
I.
A.S.'s mother, A.R. (mother), was bypassed for reunification services at a dispositional hearing in November 2021 based on previous dependencies in which she had failed to reunify with her children. (See § 361.5, subd. (b)(10) & (11).) A.R. appealed (case No. A164453), and her appellate attorney filed a no-issue statement declaring that, after reviewing the entire record, he found no arguable issues to raise on appeal. We gave mother an opportunity to identify any errors in the proceedings below, but she failed to do so. We therefore dismissed her appeal on June 10, 2022. Because mother is not involved in these writ proceedings, we focus our factual recitation on information relevant to K.S.'s claims.
In August 2020, the Contra Costa County Children and Family Services Bureau (Bureau) received a report from a Nevada child welfare worker that A.S. had reportedly been born on the side of the road while mother and M.H. were traveling from California to Las Vegas. Upon presenting the baby at a Las Vegas hospital, mother tested positive for marijuana and opiates. M.H. provided a false name for mother upon admission, and the child was believed to be older than reported. A.S. was doing well but tested positive for marijuana. After being informed by the Bureau that mother's four older children had all been removed and placed in permanent out-of-home care, Nevada child welfare detained A.S. On September 10, 2020, it was determined pursuant to the uniform child custody jurisdiction and enforcement act (UCCJEA) that A.S.'s home state is California, and he was released to the Bureau.
Mother named M.H. as A.S.'s father on September 14, 2020. M.H. declined to be interviewed but did claim A.S. as his son and stated he signed a birth certificate. D.W. was also named as an alleged father in the referral paperwork from Nevada. He was the presumed father of one of mother's older children who, ultimately, had his parental rights terminated. It was unclear to the Bureau if he was actually involved with A.S. or if his name was provided as an alias. On September 18, 2020, the Bureau filed a dependency petition with respect to A.S., alleging that the minor came within the provisions of section 300, subdivisions (b) and (j) due to mother's chronic substance abuse and her failure to reunify with her older children. Both M.H. and D.W. were named as alleged fathers in the petition. However, the minor was listed on the petition as A.S., with the same last name as K.S.
A.S. was formally detained at the detention hearing on September 22, 2020. Mother identified M.H. as the child's father. In October 2020, genetic testing was ordered for M.H. The Bureau was still trying to locate a birth certificate. M.H. subsequently missed several testing appointments and both he and mother had little contact with the Bureau. Ultimately, in response to a petition from the Bureau, the court issued an order establishing birth for A.S. on April 21, 2021, which stated his father was unknown. At the jurisdictional hearing on June 18, 2021, the juvenile court sustained allegations in the amended petition, finding A.S. to be a person described by subdivisions (b) and (j) of section 300. A.S. continued in a placement with two of his half-siblings.
Mother had texted the social worker on or around April 27, 2021, indicating that K.S. could be A.S.'s father and would be contacting the Bureau regarding genetic testing. The social worker attempted telephone contact with K.S. multiple times, but he did not respond. After asking mother for any additional contact information, the social worker learned from mother on June 15, 2021, that K.S. had recently been arrested and might be incarcerated in a Bay Area jail. K.S. was located in the Santa Rita Jail, and the social worker mailed him written notice of the dependency proceedings the next day. K.S. has an extensive history of arrests between 2013 and 2021, with at least three felony convictions. On June 25, 2021, counsel was appointed for K.S. In a July 2021 telephone conversation, K.S. informed the social worker that he and mother (whose name he did not recall) had been in a dating relationship for six months in early 2020. He was not aware mother was pregnant until after they separated. He wanted genetic testing. In July 2021, the Bureau requested and received an order for genetic testing for K.S.
The court attempted to bring K.S. to court numerous times, starting in July 2021. However, since K.S. was in custody on a federal case, the jail would not release him. In August 2021, genetic testing indicated K.S. was the biological father of A.S. In August, September, and October 2021, the social worker mailed K.S. noticing information, resources, and referrals to address recommended case plan services. At a hearing on October 22, 2021, the court concluded that visitation with K.S. in the jail would be detrimental to A.S. and that there was insufficient evidence, at that point, to raise K.S. from biological to presumed father status.
K.S. was charged with illegal importation of a firearm and ammunition. (18 U.S.C. § 922(a).)
The court ultimately held a dispositional hearing with respect to mother on November 19, 2021. The juvenile court continued to find A.S. to be a person described by subdivisions (b) and (j) of section 300 and declared the minor a juvenile court dependent. Mother was bypassed for reunification services pursuant to subdivision (b)(10) and (11) of section 361.5.
Dispositional issues with respect to K.S. were addressed at a hearing on April 1, 2022. A.S.'s social worker testified that she had no contact with K.S. other than that which she initiated, with the exception of one call from K.S. shortly after his biological paternity was established. She returned a voicemail from the paternal grandmother and never heard back from her. She had not been contacted by any other paternal family members. K.S. never asked about A.S.'s health or well-being and did not press for visits for himself in the jail. K.S. was still pending trial on the federal charges and there was no release date set.
K.S. testified that he was excited to learn he was A.S.'s biological father, but he was also sad due to the situation he was in at the time. He reported that he had a court date in May that should lead to a plea deal with a release date in August or September 2022. Upon release, he planned to live with his mother or his girlfriend. When he learned he was A.S.'s biological father, he told his mother, friends, and "a couple" family members. He encouraged his mother to try to get visitation with the minor. He also signed up for parenting, anger management, drug treatment, and general educational development (GED) classes while incarcerated, but they did not occur due to the COVID-19 pandemic. He was willing to do any classes the Bureau asked him to do to help reunify with A.S.
K.S. knew mother from living in the same neighborhood. They met through mutual friends and dated for "a couple months" in 2020. She told him she was pregnant, "presumably with his child," in the summer of 2020.At some point, mother also told K.S. that it was not his baby. K.S. heard through relatives in August 2020 that A.S. had been born. He never met the child because, after mother gave birth, she moved to Las Vegas and got married. He did not ask for genetic testing at that time.
K.S. initially testified the two dated in the spring of 2021. But when the court reminded him that A.S. was born in August 2020, he clarified it had been 2020 and then stated: "To be honest I forgot when I was dating that girl."
K.S. did not have mother's telephone number but could contact her through relatives and on social media. After A.S. was born, K.S. made "a whole lot" of attempts to contact mother through Instagram but she did not respond. According to K.S.: "[S]he done moved on and I done moved on. She started dating someone else while she was pregnant[,] and I started dating somebody else." Once he went to jail in June 2021, mother started reaching out to his family. Mother told the paternal grandmother that her husband did not really want mother having contact with K.S.
K.S. had been incarcerated "four or five" times. He testified that his current incarceration was for possession of a firearm. The firearm was found during a parole search, as he had been on parole after a conviction for a home invasion robbery. K.S. could make unlimited calls from the jail but had to pay for them. He had an 11-year-old son who he had lived with for seven years and who he helped support without court order. K.S. remained involved with his older son through phone calls and having the paternal grandmother buy things for the child.
After argument, the juvenile court declined to raise K.S.'s status to that of presumed father pursuant to Kelsey S., stating: "It doesn't appear that [K.S.] made a very strong effort at all to try to be a real father to this child. As he said, he moved on, she moved on, and I think as [the social worker] indicated, he seemed to be of the mindset that their lives had diverged and he did not seem to have a strong interest in following up on [A.S.]" The court additionally concluded, pursuant to section 361.5, subdivision (a), that the provision of reunification services to K.S. as a biological father would not benefit A.S. And it denied a request for visitation with the paternal grandmother, noting the lack of efforts by the paternal grandmother to set up visitation and that visits would not "make sense or benefit [A.S.]" given the court's rulings that day. The court then set the matter for a permanency planning hearing pursuant to section 366.26 so that a permanent out-of-home plan could be established for A.S. This timely petition followed.
II.
DISCUSSION
A. Designation as Biological Father
K.S.'s primary argument in his writ petition is that the juvenile court erred in refusing to declare him the minor's presumed father at the April 2022 dispositional hearing. "An unwed father's rights and duties under the Uniform Parentage Act of 1973 (UPA), adopted by our Legislature as Family Code section 7600 et seq., substantially depend on whether he is a 'presumed father' within the meaning of Family Code section 7611." (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228.) "Whether a biological father is a 'presumed father' . . . is critical to his parental rights." (Kelsey S., supra, 1 Cal.4th at p. 823.) Only presumed fathers are entitled to custody and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449, 452 (Zacharia D.).) Generally speaking, "[a] man who has neither legally married nor attempted to legally marry the mother of his child becomes a 'presumed father' under subdivision (d) of Family Code section 7611 if he both ' "receives the child into his home and openly holds out the child as his natural child." '" (Tanis H., at p. 1228; see Fam. Code, § 7611, subd. (d).) In this case, K.S. does not qualify as a presumed father under Family Code section 7611, subd. (d).)
However, in Kelsey S., supra, 1 Cal.4th 816, our Supreme Court determined that the statutory distinction between natural fathers and presumed fathers is invalid under constitutional guarantees of equal protection and due process "to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities." (Id. at 849.) As Kelsey S. explains, "[t]he father's conduct both before and after the child 's birth must be considered. 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.' [Citation.] 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.) A court "must consider whether [the father] has done all that he could reasonably do, under[] the circumstances." (Id. at p. 850.)
"The burden is on a biological father who asserts Kelsey S. rights to establish the factual predicate for those rights." (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679 (O.M.); Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539 (Myah M.).) In reviewing the juvenile court's factual findings with respect to whether father met this burden, we apply the substantial evidence test. (O.M., at pp. 679-680.) "When determining whether substantial evidence is present, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. [Citation.] We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. [Citation.] Substantial evidence is 'reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged . . . .' [Citation.] The appellant must show the evidence is insufficient to support the trial court's findings." (Myah, at p. 1539.)
However, whether the proven facts "satisfy the legal standard established by Kelsey S. is a mixed question of law and fact." (In re D.S. (2014) 230 Cal.App.4th 1238, 1245 (D.S.); see also Haworth v. Superior Court (2010) 50 Cal.4th 372, 384 [" 'Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied.' "].) "Mixed questions of law and fact are reviewed under the substantial evidence test' "[i]f the pertinent inquiry requires application of experience with human affairs . . . [and] is predominantly factual,"' but are reviewed de novo if' "the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values [and thus] is predominantly legal" '" (D.S., at p. 1245.) Since "the question whether an unwed biological father's actions reflect the level of commitment required to ripen his inchoate constitutional interest into a constitutional right under Kelsey S. implicates constitutional and public policy considerations," it is a predominantly legal inquiry subject to our de novo review. (Ibid.)
Given the facts established in this case, we see no error in the juvenile court's determination that K.S. does not satisfy the Kelsey S. criteria. Mother told K.S. she was pregnant and that he was possibly the father in the summer of 2020, and K.S. knew A.S. was born (he believed in California) in August 2020, before mother relocated to Las Vegas. K.S. was not taken into custody until June 2021. As the court found: "It doesn't appear that from the time he knew she was pregnant until the time he was aware she had the baby that he took great effort in trying to establish any real relationship or paternity of [A.S.]" Indeed, there is no evidence that K.S. offered any emotional or financial support during this timeframe; nor did he seek genetic testing or take any other action in an attempt to establish his paternity. After A.S. was born and mother relocated to Las Vegas, while K.S. made "some efforts" to contact mother on social media, the court again found "[i]t doesn't appear that he made a very strong effort at all to try to be a real father to this child. As he said, he moved on, she moved on." Substantial evidence supports this finding. K.S.'s only effort to support the child in any way during this time frame was attempting to have the paternal grandmother ask for visitation. And even after he learned he was A.S.'s biological father, he showed no interest in the child's growth, development, or general well-being. It simply cannot be concluded on this record that K.S." 'promptly [came] forward and demonstrate[d] a full commitment to his parental responsibilities-emotional, financial, and otherwise.'" (D.S., supra, 230 Cal.App.4th at p. 1244, quoting Kelsey S., supra, 1 Cal.4th at p. 849.) Thus, we will not disturb the juvenile court's conclusion that K.S. failed to qualify as a presumed father under Kelsey S.
Since we have concluded that K.S. did not do all he could reasonably do, even acknowledging the limitations placed on him by his incarceration, we state no opinion as to whether incarceration should weigh against a biological father under Kelsey S. (Compare O.M., supra, 169 Cal.App.4th at p. 675 [finding the biological father's "ability to demonstrate his commitment was impeded . . . by the predictable consequences of his own criminal activity"] with D.S., supra, 230 Cal.App.4th at p. 1246 [finding it unnecessary to decide the relevance of incarceration on the facts presented, but tending to agree "that a father whose own bad decisions preclude him from carrying out his parental responsibilities does not satisfy the high bar set by Kelsey S."].)
B. Denial of Reunification Services
K.S. additionally argues that, even if the court did not err in declining to designate him a Kelsey S. father, he still should have been granted reunification services, including visitation, in accordance with section 361.5, subdivision (a). Pursuant to that statute, the juvenile court "may order services" for a dependent child and the child's biological father, "if the court determines that the services will benefit the child." (§ 361.5, subd. (a); see In re Elijah V. (2005) 127 Cal.App.4th 576, 589; In re O.S. (2002) 102 Cal.App.4th 1402, 1409.) "It is the parent's burden to prove that the minor would benefit from the provision of court-ordered services." (See Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124.) The juvenile court's decision to deny reunification services to a non-presumed but biological father is reviewed for abuse of discretion. (See In re Elijah V., at pp. 588-589.) "When applying the deferential abuse of discretion standard, 'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.'" (In re C.B. (2010) 190 Cal.App.4th 102, 123.)
In support of his argument that services and/or visitation should have been provided to him, K.S. points to the efforts he made to assume parental responsibility for A.S. which we have already discussed and found lacking. He also argues that he should not be denied services due to his incarceration; he enrolled in services in the jail, but they were on hold due to the COVID-19 pandemic; he expected to be released in August or September 2022; and A.S. would lose the possibility of relationships with his half-brother and paternal grandmother if services were denied.
K.S. also argues that the permanency planning hearing will likely be stayed anyway due to mother's pending appeal. However, as mentioned above, we dismissed that appeal earlier this month.
The juvenile court did note that A.S. was 20 months old given the delays in the case, when initially it should have been a six-month case for a child of his age. The court also commented that it would not benefit A.S. to provide six months of services when K.S. would be incarcerated for the majority of that time, even assuming K.S.'s understanding of his case was accurate. As the court noted: "He has not pled to anything yet and I am taking at face value that he believes he will be out sometime late summer." In the end, though, the court based its decision not to provide services on A.S.'s complete lack of a relationship with K.S. and K.S.'s failure to show an interest in how the minor was doing, even after his biological parentage was established. As the court explained: "We . . . know that other than, I think it was a five-minute conversation in September of last year, wherein it was confirmed that he was the father of the child and that he was able to call [the social worker] via a collect call without any impediment, that he did not contact her further nor did he send any letters to her or anything of that nature. [¶] So not only is there not a relationship here, but there does not appear to be any true efforts to have an awareness of how [A.S.] was doing, even if he could not have visits, and I understand that. There still could have been inquiries into how [A.S.] was doing, some kind of showing that there was an interest in [A.S.]." The court concluded that "in the absence of a relationship or connection, in the absence of any real overt acts showing strong interest in establishing some type of parental role for [A.S.], I do not see that the provision of services would benefit [A.S.]." We see no error and certainly no abuse of discretion.
III.
DISPOSITION
The petition is denied on the merits. (See § 366.26, subd. (l)(1)(C), 4(B).) Because the permanency planning hearing in this matter is set for July 8, 2022, this opinion is final as to this court immediately. K.S.'s request for a stay of the permanency planning hearing is denied as moot.
WE CONCUR: MARGULIES, ACTING P. J., BANKE, J.
[*] Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.