Opinion
A159118
03-10-2020
MATTHEW J., Petitioner, v. SUPERIOR COURT FOR THE COUNTY OF SONOMA, Respondent; SONOMA COUNTY HUMAN SERVICES DEPARTMENT et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. DEP-5832)
Matthew J. is an alleged father of J.R., a one-year-old dependent of the juvenile court. After the juvenile court denied his request for presumed father status, Matthew seeks review by extraordinary writ of an order setting a Welfare and Institutions Code section 366.26 hearing. We deny Matthew's petition and his request for a stay of the section 366.26 hearing.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
A.
The Uniform Parentage Act (Fam. Code, § 7600 et seq.) distinguishes between "alleged," "biological," and "presumed" fathers. (In re J.L. (2008) 159 Cal.App.4th 1010, 1018, superseded by statute on other grounds.) An alleged father is a man who may be the father of a child, but who has not established biological paternity or presumed father status. (J.L., supra, at p. 1018.) A biological father is one who has established biological paternity but has not met the statutory requirements for presumed father status. (Ibid.) "The distinction is important because only a presumed father is entitled to custody or a reunification plan." (In re J.O. (2009) 178 Cal.App.4th 139, 147.)
"Presumed father status is governed by [Family Code] section 7611, which sets out several rebuttable presumptions under which a man may qualify for this status, generally by marrying or attempting to marry the child's mother or by publicly acknowledging paternity and receiving the child into his home. [Citations.] Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611. On the contrary, presumed father status is based on the familial relationship between the man and the child, rather than any biological connection." (In re J.L., supra, 159 Cal.App.4th at p. 1018, italics added.) A presumed father is one "who 'promptly comes forward and demonstrates a full commitment to his paternal responsibilities—emotional, financial, and otherwise.' " (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.)
B.
In March 2019, about two weeks before J.R.'s birth, an explosion occurred at the house where J.R.'s older sibling (then two-year-old Alexander), J.R.'s Mother, and J.R.'s presumed father (Elton R.) lived. Law enforcement determined the explosion was caused by Elton's production of hash oil and found approximately eight and one-half pounds of marijuana shake and 41 grams of methamphetamine nearby. Alexander was in the home when the explosion occurred but fortunately was not harmed. Elton and the family dog were not so lucky. Both sustained serious burns. Elton was charged with, among other offenses, felony child endangerment (Pen. Code, § 273a) and possession of a controlled substance for sale (Health & Saf. Code, § 11378).
Neither Mother nor Elton is a party to this writ proceeding.
The following month, the Sonoma County Human Services Department (Department) filed a petition alleging newborn J.R. came within section 300, subdivision (j). The petition alleged J.R. was at substantial risk of abuse or neglect due to Elton's manufacturing drugs within the family home and Mother's failure to protect J.R.'s sibling from this serious danger. Both Matthew and Elton were listed as alleged fathers on J.R.'s petition.
The Department's detention report indicated Alexander had previously been removed from Mother's and Elton's custody and declared a dependent of the juvenile court, in April 2016, after Mother tested positive for amphetamines, methamphetamines, marijuana, and opiates during her first pregnancy. Mother and Elton reunified with Alexander and the prior dependency had been dismissed. Despite this history and testing positive for marijuana during her pregnancy with J.R., Mother denied any ongoing drug use and also denied knowledge that Elton manufactured or possessed drugs in their home.
Elton was present when J.R. was born. Mother told hospital staff he was J.R.'s father. Elton said he and Mother intended to continue living together as a family. Matthew, who was alternatively identified as Mother's ex-boyfriend, brother, friend, and J.R.'s godparent, also visited the hospital.
Mother and Matthew both appeared at the detention hearing and were appointed counsel. Mother's counsel stated Elton, and not Matthew, was J.R.'s biological father. Matthew agreed. Given his denial of paternity, the juvenile court relieved Matthew's attorney. The court ordered J.R. detained in foster care but ordered him returned to Mother once a safety plan was in place.
C.
In the combined jurisdiction and disposition report, the social worker reported both children and Mother were then living with Matthew and sleeping in his living room, "while [Mother] searche[d] for safe and appropriate housing." Regarding paternity, the social worker noted Elton lived with Mother at the time of J.R.'s conception, was present at his birth, signed J.R.'s birth certificate, and held J.R. out as his child.
Mother continued to deny Elton caused the explosion or continued to use methamphetamine. However, Mother reported they were separated and that she understood contact between Elton and the children was to be arranged only by the Department. Accordingly, the Department recommended the children be returned to Mother, under Departmental supervision, with family maintenance services.
The court advised Matthew of the jurisdictional/dispositional hearing and informed him that he could be J.R.'s father and had a right to appear at the hearing. The court also provided a Statement Regarding Paternity (Juvenile Dependency) form (Judicial Council Forms, form JV-505).
Matthew did not appear at the hearing and Elton was declared J.R.'s presumed father. Mother submitted on the allegations of the petition, which the juvenile court sustained. J.R. was declared a dependent, removed from Elton's custody and placed in Mother's home under a family maintenance plan.
D.
About two weeks later, Elton was found unresponsive in a "hot" car in Mother's garage. Five-month-old J.R. was lying on Elton's chest and three-year-old Alexander was running, alone, in traffic on a nearby street. The children's babysitter admitted Elton picked up the children and that Mother had not told her his contact needed to be supervised by the Department. Mother, in contrast, asserted law enforcement had misidentified Elton's brother for Elton. The Department filed a supplemental dependency petition (§ 387), alleging the children were at substantial risk of physical harm in Mother's care. J.R. was again detained in foster care.
In the Department's combined jurisdiction and disposition report, the social worker noted Mother now refused all services, had stopped responding to the social worker's calls, and admitted drinking alcohol and smoking marijuana. She had recently requested Matthew be assessed for placement. The Department recommended bypass of reunification services for both Elton and Mother (§ 361.5, subd. (b)(1), (13)).
E.
Six months after the initiation of J.R.'s dependency proceedings and a month after his second detention, Matthew appeared in juvenile court and requested paternity testing. The court ordered genetic testing and Matthew attempted to schedule the test several times. For reasons the record does not make clear, testing was not completed.
Despite the absence of genetic testing results, in December 2019, Matthew filed a request to change a court order (§ 388), seeking to elevate his status to presumed father. He also filed a statement regarding parentage (Judicial Council Forms, form JV-505). In his supporting declaration, Matthew stated he was J.R.'s father, he was present for J.R.'s birth, and J.R. lived with him between his birth and "the [section] 387 detention." During the first couple weeks of J.R.'s life, Matthew bathed J.R., fed him, changed his diapers, and purchased diapers and food. He explained his delay in asserting paternity: "At the time of [J.R.'s] birth I was unsure if I was the father. However, . . . [¶] [b]y [the time J.R. was detained in response to the section 387 petition], I was certain that [J.R.] was my child based on the child's appearance, and I treated him as such." Specifically, Matthew thereafter told his employer and customers that J.R. was his son.
Matthew has since filed an unopposed request for judicial notice with this court, asking us to take notice of DNA testing results, dated December 27, 2019, that show he is J.R.'s biological father. We deny Matthew's request because, as Matthew concedes, the DNA results were not before the juvenile court when it made the challenged ruling.
At the contested hearing on the section 388 petition, Matthew's counsel clarified that J.R. lived with Mother, in Matthew's home, "for a period of time" under the safety plan and then, after Mother and the children moved into independent housing, J.R. continued to spend "overnights" in Matthew's home. County counsel and J.R.'s counsel opposed Matthew's request, noting that despite the ongoing dependency case, Matthew had not come forward promptly to claim paternity or to request services and visitation.
The juvenile court denied Matthew's request, concluding Matthew had not shown a sufficient change of circumstance, as required by section 388, and alternatively had not proved he qualified as a presumed father. The court renewed its genetic testing order and proceeded with a contested disposition hearing on the section 387 petition. The court sustained the petition, ordered J.R. removed from Mother's custody, denied reunification services to both Mother and Elton, and set a section 366.26 hearing for April 9, 2020.
DISCUSSION
Matthew challenges the juvenile court's finding he is not a presumed father under Family Code section 7611, subdivision (d). We conclude the finding is supported by substantial evidence. (See In re L.L. (2017) 13 Cal.App.5th 1302, 1310.)
1.
A person claiming entitlement to presumed father status bears the burden of establishing the statutory requirements by a preponderance of the evidence. (In re J.O., supra, 178 Cal.App.4th at p. 147.) Family Code section 7611, subdivision (d), provides one may qualify as a presumed parent by "receiv[ing] the child into their home and openly hold[ing] out the child as their natural child."
The court may consider a wide variety of factors, including "whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental." (In re T.R. (2005) 132 Cal.App.4th 1202, 1211.) No single factor is determinative. (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 774.) The question is, at base, whether the father has a "fully developed parental relationship" with the child. (Id. at p. 776, italics omitted.)
In " 'rare cases' where a child truly has more than two parents" (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1087) and " 'recognizing only two parents would be detrimental to the child,' " the court may declare more than one presumed father. (Ibid.; Fam. Code, § 7612, subd. (c).)
2.
We agree with the Department that substantial evidence supports the juvenile court's finding.
There is no evidence Matthew assisted Mother with prenatal care or associated expenses. Matthew says he was present at J.R.'s birth, but he did not claim paternity immediately. Matthew may have eventually told customers and his boss that J.R. was his son, but he certainly did not make that clear to the Department or juvenile court for a period of six months while the dependency case was ongoing. It was only after the dependency case had been pending for six months, and it appeared Mother would not receive reunification services, that Matthew began to try to establish paternity. In fact, he specifically and publicly denied paternity when he was represented by counsel and J.R. was about to move into his home under the safety plan. Even after Matthew apparently became convinced that J.R. was his son, Matthew has continued to limit his declaration of paternity—announcing it only to his customers and employer. Other than buying diapers and formula during J.R.'s first few weeks of life, there is no evidence Matthew (despite being currently employed) has financially contributed to J.R.'s support.
Even if we assume such evidence was sufficient to prove Matthew received J.R. into his home, substantial evidence shows the second prong of Family Code section 7611, subdivision (d), is not met. Because the evidence shows Matthew was equivocal in asserting his paternal relationship, the juvenile court could rationally believe Matthew failed to satisfy his burden to show he publicly held out J.R. as his son. (See In re Spencer W. (1996) 48 Cal.App.4th 1647, 1651, 1654 [evidence insufficient to establish father openly and publicly admitted paternity where record "showed [father] claimed paternity to his friends and family but was unwilling to proclaim paternity when there might have been some cost to him"].)
We need not address whether Matthew showed a change of circumstances (§ 388) or whether J.R. has more than two parents, pursuant to Family Code section 7612, subdivision (c). (See In re M.Z. (2016) 5 Cal.App.5th 53, 66 [establishing presumed parent status under Uniform Parentage Act is prerequisite to seeking third parent status].)
Shortly after filing his notice of intent to file a writ petition, Matthew also filed a notice of appeal (A159232) challenging the same order. On our own motion, we take judicial notice of the record filed in the A159232 appeal. (Evid. Code, § 452, subd. (d).) By separate order, we will ask the parties whether the A159232 appeal should be dismissed as moot. --------
DISPOSITION
Matthew J.'s writ petition is denied on the merits. The request for a stay is also denied. Because the section 366.26 hearing is set for April 9, 2020, our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
BURNS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.