Opinion
F070615
06-17-2015
In re I.B. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ANTONIO C., Defendant and Appellant.
Rebekah S. Sass, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Amanda LeBaron, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD133304 & JD133305)
OPINION
THE COURT APPEAL from orders of the Superior Court of Kern County. Louie L. Vega, Judge. Rebekah S. Sass, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Amanda LeBaron, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
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Appellant Antonio C. is the former temporary probate guardian of 11-year-old I.B. and 8-year-old C.B. Antonio contends the juvenile court erred in finding he is not I.B. and C.B.'s presumed father and in terminating his guardianship. We affirm.
PROCEDURAL AND FACTUAL SUMMARY
Antonio was the live-in boyfriend of the adoptive mother (hereafter "the mother") of three brothers, A.B., I.B. and C.B. He lived with the family for approximately three and a half years when in June 2014, the mother died. Immediately after their mother's death, I.B. and C.B. spent a short period of time with maternal relatives but ended up in Antonio's custody. At the time of the mother's death, then 14-year-old A.B. was committed to the Camp Erwin Owen juvenile facility.
In early August 2014, Antonio filed for legal guardianship of the children and took I.B. and C.B. to live with his brother Jimmy.
When A.B. discovered that his brothers were living with Jimmy he reported that Jimmy sexually molested him and I.B. A.B. disclosed that Jimmy had been orally copulating and sodomizing him since he was 12 years old. A.B. also disclosed that in April 2014 he witnessed Jimmy orally copulate I.B. A.B. and I.B. told their mother about the molestation. Antonio overheard the conversation, became angry and denied that it happened. The mother did not call the police because Antonio was upset. However, she did not allow A.B. and I.B. to go to Jimmy's house for a long time.
Sheriff's deputies arrested Jimmy and took I.B. and C.B. into protective custody. The Kern County Department of Human Services (department) filed a dependency petition alleging Jimmy sexually abused A.B. and I.B. and that Antonio was aware of the sexual abuse and failed to protect them from Jimmy.
Antonio denied any knowledge that Jimmy sexually molested A.B. and I.B. He said he considered their mother his common law wife and he loved the children. He said the children refer to him as a father.
Social worker Isha Mahmood contacted relatives concerning Antonio and the children. The children's maternal aunt stated I.B. and C.B. lived with their adult brother, Christopher B., after their mother died. I.B. attended his mother's funeral and spent some time with the aunt until Antonio convinced one of the relatives to let him take I.B. to lunch. Antonio never returned I.B. to the relatives and did not allow the children to visit the relatives. The aunt said Antonio did not attend the mother's funeral and refused to take C.B. to the funeral despite several requests from the children's adult sister, Michelle B. The aunt did not believe Antonio was an appropriate caregiver for the children. She said I.B. and C.B. wanted to live with Christopher and the relatives were trying to arrange for their placement with Christopher or Christen, another adult sister.
Michelle did not believe Antonio was her mother's boyfriend but just provided her company. She said Antonio walked the children to school sometimes but forgot to pick them up. She said he smoked a lot of "weed." Sometimes he took the children with him for three or four days in his camper. When the mother tried to contact him during those times, he did not return her phone calls. As her mother became more ill, Michelle had to assist her because Antonio was neglectful.
Christopher said Antonio tried to act as though he was the children's father but did not believe he contributed financially to the household because his mother contacted him to help pay the bills.
Mahmood also spoke to the office manager where the mother lived. The manager said the mother resided in the home since 2012 and only the mother and the children were listed on the lease. There was no indication of a man living in the home and the manager spoke to a man only once and that was when the mother passed away.
The juvenile court ordered I.B. and C.B. detained and appointed an attorney for Antonio. The court also ordered county counsel to file a motion to dissolve the guardianship and ordered weekly two-hour visits for Antonio. The court set a combined hearing on jurisdiction and disposition (combined hearing).
Prior to the combined hearing, Antonio's attorney filed a motion to establish his paternity. Counsel argued Antonio satisfied the paternity presumption set forth in Family Code section 7611, subdivision (d) because he "openly embraced the children as his own" for the previous four years and performed all the functions of a parent. Counsel pointed out the children did not have any other living presumed or legal parent.
The juvenile court set a hearing on the motion to be heard on the same date as the combined hearing.
In its report for the combined hearing, the department informed the juvenile court that Antonio regularly visited I.B. and C.B. under its supervision and that there was clearly a relationship between him and the boys. However, the department did not recommend elevating Antonio to presumed father status and recommended that the court terminate the temporary legal guardianship.
In December 2014, the juvenile court conducted a contested combined hearing. Antonio testified that he took the role of the children's father in the three and a half years that he lived with them. He took them to school, occasionally attended their school activities, prepared meals, washed the clothes and cleaned the house. He considered them his sons. He said the mother asked him to take care of the children when she died.
The juvenile court found that Antonio was not I.B. and C.B.'s presumed father and terminated the temporary guardianship. The court dismissed the original petition and sustained a first amended petition alleging under Welfare and Institutions Code section 300, subdivision (g) that I.B. and C.B.'s mother died, leaving them without any provision for support and there was no other legal guardian available to care for them. The court set a dispositional hearing for later in the month.
This appeal ensued.
DISCUSSION
A. Presumed Father Designation
Family Code section 7611 sets forth the presumptions under which a man may be declared a presumed father. Antonio claims a presumption of paternity under subdivision (d) of the statute which provides:
"A person is presumed to be the natural parent of a child if the person meets the conditions ... in any of the following subdivisions: [¶] ...[¶ ] (d) The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." (Fam. Code, § 7611, subd. (d).)
A man seeking presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting the presumption. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.) A presumption arising under Family Code section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted only by clear and convincing evidence. (Fam. Code, § 7612, subd. (a).)
Where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, the question on appeal is whether the evidence was sufficient, as a matter of law, to compel a finding in favor of the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Antonio does not argue that the evidence supported a finding he is I.B. and C.B.'s presumed father as a matter of law and indeed there is absolutely no evidence to support such a conclusion. Antonio did not receive the children into his home. According to the evidence, the children lived in a home that their mother leased in 2012. Antonio was not a cosigner on the lease and there is no evidence he contributed financially to the household. It appears rather that he was present in the home in some capacity and provided caretaking duties for the mother. Further, there is absolutely no evidence that Antonio held I.B. and C.B. out as his natural children.
Rather, in his appeal Antonio proceeds as if he established the presumption and argues the juvenile court erred in finding his failure to protect the children from Jimmy rebutted the presumption. To that end, he cites In re T.R. (2005) 132 Cal.App.4th 1202 (T.R.) in which the juvenile court found that a stepfather's sexual abuse of his 10-year-old stepdaughter rebutted a presumption of paternity even though he lived with her, held her out as his own daughter, and provided for her from the age of three. (Id. at pp. 1206-1208.) The appellate court affirmed the judgment, explaining: "If an individual can qualify for presumed father status based on his good deeds consistent with parental responsibilities, it follows that under certain circumstances he can be disqualified by repugnant conduct that is detrimental to the child." (Id. at p. 1212.)
Antonio argues his conduct (i.e., failing to protect I.B. and C.B. from Jimmy) when compared to that of the stepfather in T.R. is not so repugnant as to rebut a presumption he qualifies as the children's presumed father under subdivision (d) of Family Code section 7611. We need not however consider whether Antonio's conduct disqualifies him as a presumed father, having concluded he failed to establish the presumption as a matter of law.
B. Termination of Probate Legal Guardianship
Welfare and Institutions Code section 728 permits the juvenile court to terminate a probation guardianship "of the person of a minor who is before the juvenile court under a petition filed under Section 300 ...." (Welf. & Inst. Code, § 728, subd. (a).)
"The sole criterion for termination of a probate guardianship is whether termination is in the minor's best interests. [Citation.] We review a juvenile court's order terminating a probate guardianship under the substantial evidence standard. [Citation.]" (In re Xavier R. (2011) 201 Cal.App.4th 1398, 1416.)
Antonio contends the juvenile court's order terminating his guardianship must be reversed because the court did not make an express finding that terminating the guardianship was in I.B. and C.B.'s best interest. We disagree. The statute does not require the juvenile court to make an express finding that terminating the guardianship would serve the child's best interest. Further, we can infer a required finding if it is supported by substantial evidence. (In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84.) Substantial evidence supports such a finding in this case.
Antonio knowingly exposed I.B. and C.B. to sexual abuse by taking them to live with Jimmy. Antonio not only knew that Jimmy sexually abused A.B. and I.B., but also knew that Jimmy abused them in the severest ways (i.e., sodomy and oral copulation). In addition, Antonio placed the children with Jimmy in the intimate confines of the home where such a violation is almost certain to occur. For these reasons we conclude substantial evidence supports a finding that terminating Antonio's temporary probate guardianship was in the best interest of I.B. and C.B.
We find no error on this record.
DISPOSITION
The judgment is affirmed.