Opinion
F075372
08-16-2017
In re E.F., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. LUIS M., Defendant and Appellant.
Julie E. Braden, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 517745)
OPINION
THE COURT APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Julie E. Braden, 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.
Before Gomes, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
Luis M. appeals from juvenile court orders denying his request to be designated the presumed father of his biological son, E.F., and denying him reunification services pursuant to Welfare and Institutions Code section 361.2, subdivision (a). He challenges only the denial of services. He contends the juvenile court was precluded from offering him services because it found another man to be E.'s presumed father. On that basis, he argues the juvenile court erred in so finding and contends it was in E.'s best interest to offer him services. Finding no merit to Luis's contentions, we affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Sandra F. (mother) is the mother of two sons, G.G., born in 2001, and E.F., born in 2008, and two daughters, Samantha B., born in 2014, and Alexa B., born in 2016. It is undisputed that Gustavo B. is the presumed father of Samantha and Alexa, Jorge G. is the presumed father of G., and Luis is the biological father of E.F.
These proceedings began in October 2016, when the Stanislaus County Community Services Agency (Agency) received a referral that law enforcement had responded to a domestic violence incident at mother's home, which the children witnessed. Mother was living with the children and the maternal grandmother. Mother reported to law enforcement that Gustavo assaulted her. Mother said she had an active restraining order against Gustavo, but could not explain why she allowed contact with him. Gustavo fled before law enforcement arrived and a warrant was issued for his arrest.
When interviewed by a social worker, then eight-year-old E. described substantial domestic violence between mother and Gustavo. E. told the social worker his father's name was Luis, but he did not know when he last saw or spoke to him. The social worker also interviewed 15-year-old G., who said that his father was Jorge and he lived in Mexico; G. last spoke to and saw Jorge "at the beginning of last year." Jorge had two prior convictions - a domestic violence conviction in 2005 and a driving under the influence of alcohol conviction in 2007.
A social worker interviewed Luis twice. The first interview was by telephone; Luis told the social worker he had not seen E. since he was about one year old, and he had not been in contact with mother in a long time and did not know how to reach her. The second interview occurred at Luis' home. Luis told the social worker he would love to have contact with E., since he had not seen or talked to him in over a year. Luis was willing to take E. into his home if mother was unable to care for him. The social worker discussed with Luis the possibility of obtaining custody of E. Luis stated that he was a popular soccer player when he was younger and courted many women. Luis said he exchanged money and valuables for sex with mother, and mother returned a month later and told him she was pregnant with his child. Luis was concerned that he was not E.'s father.
Mother initially agreed to participate in services and to a safety plan, whereby maternal grandmother would be the children's primary caretaker and Gustavo would not have any contact with the children during the investigation. About a week later, mother said she was no longer interested in participating in voluntary services due to a lack of time. Mother said she had moved to Sacramento and she left the children with maternal grandmother. Moreover, maternal grandmother reported to the social worker that the paternal grandfather had contacted her and threatened to take the girls. Maternal grandmother was concerned about Gustavo and that he had previous weapons charges.
Based on these developments, the Agency took the children into protective custody and filed a petition under section 300, subdivision (b), alleging the children were at risk of harm due to the domestic violence between mother and Gustavo, and subdivision (g), alleging Jorge was in Mexico and unable to provide care and support for G. The children were placed in foster care, with the girls placed together in one home and the boys in another. The petition identified Jorge as G.'s alleged father, and Luis as E.'s alleged father.
A social worker spoke with Jorge, who reported he was in Mexico and did not have a visa or passport to get to the United States. The social worker told Jorge that G. had been taken into protective custody. Jorge admitted he was arrested for a domestic violence incident with mother a "long time ago" and said he participated in a domestic violence program. He claimed he had not engaged in any form of domestic violence since then. Jorge said he last saw G. around Christmas time in 2015, and that G. came to see him in Mexico about once a year. Jorge was willing to have G. move to Mexico to be with him, but he preferred that G. and his siblings live with their maternal grandmother. Jorge agreed to participate in services.
On the day of the detention hearing, a social worker spoke with Luis at the courthouse. The social worker provided Luis with the petition and detention report, as well as a referral for services. The social worker asked Luis if he believed he was E.'s father. Luis responded that he "believes he might be." Luis said it had been a long time since he had seen E. The social worker told Luis he could schedule visits with E. and gave him the visitation phone number.
At the detention hearing, the juvenile court ordered the children detained. The children's counsel asked the Agency to assess and look into placing the children with the maternal grandmother. Jorge appeared at the hearing by telephone, while Luis appeared in person. Both were appointed attorneys.
In the report prepared for the jurisdiction and disposition hearing, the Agency recommended services be offered to mother and Luis, who the Agency believed was E.'s "legal father." The Agency had located a child support case in Merced County, which the Merced County Child Support Division filed when E. was six months old. In that case, Luis stipulated to a judgment in December 2008, which required him to pay $412 per month in child support and established his paternity of E. Payments were made through an income withholding order.
The Agency recommended that services be denied to Jorge under section 361.5, subdivision (a), as he was only an alleged father; while Jorge claimed to be G.'s father, he did not sign his birth certificate. The Agency also recommended denial of services to Gustavo, as he was an alleged father.
The Agency recommended against placing E. with Luis. The Agency noted that Luis initially reported he was unsure if he was E.'s father, but later admitted that he was. Mother confirmed Luis was E.'s father and that he had continued to pay child support. According to mother, visits between Luis and E. had been sporadic and Luis had not "pushed" for visitation. While Luis stated he was willing to take E. into his home, it did not appear that they had a relationship and E. stated he did not want to live with Luis; instead, E. preferred to stay with his siblings and live with his maternal grandmother.
The report noted that mother had visited the children weekly since detention, but did not list any visits between Luis and E. Luis was referred to individual counseling at Sierra Vista at the October 27, 2016 detention hearing; an updated referral for family counseling with Luis and E. was submitted on November 21. As of November 22, Luis had not called to schedule an intake appointment.
Subsequent references to dates are to dates in 2016 unless otherwise stated.
At the November 28, 2016 jurisdiction and disposition hearing, Luis's attorney informed the juvenile court that Luis wanted custody of E. and asked that Luis be elevated to presumed father status. His attorney believed Luis had called the visitation center while waiting for the hearing to begin to arrange visitation. County counsel stated the Agency was opposed to placement. The matter was continued to December 15.
In an addendum report prepared for the December hearing, the Agency now recommended that Luis be denied reunification services as it would not be in E.'s best interest. A social worker spoke with E. and asked him about his dad. E. responded that "my dad is Jorge, but he is in Mexico." When asked about Luis, E. responded, "that old man is not my dad." E. said he did not talk to Luis on the phone and Luis never visited him. E. said, "I don't like him, he is not my dad, my dad is Jorge." E. denied that anyone told him to say these things. E. said he was "little" the last time he saw Luis and repeated, "Jorge is my dad. I want to see him." When asked how he felt about a visit with Luis, E. said he "would not like that."
Mother told the social worker that while Luis had paid child support for several years, he had never made an effort to see E. or build a relationship with him. Mother was confused why Luis now wanted to fight for E. if they did not have a relationship. Mother said that E. saw Jorge as his father. According to mother, she had made efforts to look for Luis so he could see E., but she stopped because she was the only one trying.
The social worker spoke with Luis about his lack of a relationship with E. Luis said his visit with E. the week before went well; E. was happy to see him and said "I want to go home with my dad." When the social worker told Luis that E. had asked about his dad "Jorge," Luis responded that E. was asking about him, not Jorge. The social worker asked Luis why he was now interested in getting placement of E. Luis said that E. was his son and he did not want him to get hurt in mother's care. Luis was okay with having E. placed with the maternal grandmother. The social worker shared the concern that before child welfare involvement, Luis did not have a relationship with E. or try to build a relationship with him. Luis responded that he had paid child support for years. When the social worker told Luis that paying child support did not mean he was interested in E., Luis stated he wanted to build a relationship with him
Luis had one visit with E. The visitation report indicated that E. was happy during the visit and his interaction with Luis was "good." In addition, Luis's interaction and conversation with E. was "okay." The visit ended with "hugs and kisses."
The children were placed together in the maternal grandmother's home on December 3.
On December 15, Luis requested a contested jurisdiction and disposition hearing, which was set for January 12, 2017.
Luis subsequently filed a JV-505 Statement Regarding Parentage, in which he asserted he had established parentage of E. by a 2008 court judgment of parentage in Merced County and asked the court to declare him E.'s presumed father and place E. in his custody. Luis attached a declaration in support of his request, in which he declared he first met mother in the spring of 2007, when she started working at his workplace. Luis, who had been married to the same woman for almost 40 years, began an affair with mother; they were together only a couple times. One month after the affair ended, mother called to tell him she was pregnant. He doubted the child was his and they had little contact throughout the pregnancy. Mother called Luis from the hospital when E. was born and asked him to sign paternity papers, but he refused. A few days later, he went to mother's home at her request with baby supplies and after looking at the baby, he knew it was his.
From then on Luis provided support in the form of clothes, diapers, food and money, in addition to the child support he was ordered to pay. As E. grew, Luis visited him nearly every week, typically on Fridays; E. was happy to see him and their visits were loving and joyful. During weekly visits, he often provided E. and mother with money for food, toys and other necessities. Luis believed he had a strong connection with E. and that E. recognized him as his father. Luis's wife found out about E. shortly after E. was born and she supported his relationship with E. He had two adult children with his wife and had held E. out to them as his own for the last eight years.
According to Luis, mother had moved in with Gustavo a few years ago; Gustavo accepted E. into his life and Luis believed E. had accepted Gustavo as a father figure. E. called Gustavo "dad" and Luis "daddy." Luis continued to visit E. Luis never filed a paternity action or sought to formalize custody because he believed mother was providing good care to E. and "the arrangement we had was working for everyone involved." This changed, however, when the Agency became involved and removed the children from mother. Luis immediately came forward to request custody and claimed he was not aware of the issues between mother and Gustavo. Luis stated that since E.'s removal, he had visited "each time I have been allowed[,]" and while at first he had difficulty scheduling visits due to his work schedule, he had since been able to work out a regular time to see him.
Luis declared he had worked for Foster Farms for 40 years, and lived with his wife, his adult son, and his two young grandchildren. Luis explained that he was not E.'s primary custodial parent for several reasons: (1) he believed mother was taking good care of E.; (2) mother and he had a mutually agreeable custody arrangement, where she was receiving sufficient support and he was receiving appropriate visitation, so he did not see a need to initiate custody proceedings; (3) E. was close to his half-siblings and maternal grandmother, and needed them in his life; and (4) he was ashamed of the circumstances surrounding E.'s conception and birth, and being a Portuguese Catholic, believed the "arrangement" was best for E. Now that the Agency was involved, however, Luis was formally requesting custody of E. and believed it was his right as E.'s father to have E. placed with him.
At the January 12, 2017 hearing, mother and Luis were present in the courtroom, while Jorge appeared from Mexico by telephone. At the outset, county counsel stated the Agency had learned since the last hearing that mother and Jorge were still married. County counsel asked the juvenile court to make inquiries since the Agency did not believe Jorge was the father of the three younger children and wanted to determine whether a presumption of paternity as to those children should continue to exist. The juvenile court asked mother if she was still married to Jorge and when they married; mother confirmed they still were married and said they married "like in 1999." Jorge agreed. Mother could not recall when she stopped living with Jorge, but only G. was born when they were still living together. They stopped living together and having sexual relations before E. was born. There was no possibility that Jorge could be the father of E. or the girls.
In a telephone conversation with the social worker that day, Jorge confirmed that he and mother married in 2001 and lived together for about 10 years. Jorge said he did not sign G.'s birth certificate, but he was G.'s father. Jorge was willing to participate in services, but preferred that G. stay in the United States with his grandmother. Jorge was willing to have G., but was not asking for placement at that time.
The juvenile court asked Jorge paternity questions. Jorge testified there was no possibility he fathered E. After E.'s birth, he provided support, diapers or other things for E. "[o]n some occasions." Jorge considered himself to be E.'s father. Jorge had not yet divorced mother. There was no possibility that he could be the girls' father and he never provided support for them.
At county counsel's request, the juvenile court found that, despite the marital relationship remaining intact, Jorge was not the girls' father. The juvenile court stated that it appeared there was a potential for competing interests between Luis and Jorge for parentage of E., and proceeded with that understanding.
Mother submitted an offer of proof, which the parties accepted. Mother would testify she married Jorge in Mexico in 1999, when she was 16 years old, and they had their first child, G., in 2001. After they separated, Jorge came around a lot to see G. In about 2007, mother started a relationship with Luis, with whom she worked. The relationship lasted four years. When mother became pregnant in 2007, Luis wanted mother to have an abortion, but mother was unable to follow through with it. After E. was born in 2008, Luis denied E. was his, including openly denying it in the workplace. Luis and mother, however, continued an occasional relationship until 2011, when his wife found out about it and mother was fired from her job.
A child support case was opened when mother went to welfare to sign up for services while on maternity leave. Luis denied paternity, but a genetic test confirmed he was the father. Luis never brought diapers, furniture, or clothes. Instead, once E. was born, Jorge would visit and bring things for E. A parent/child relationship developed between Jorge and E., as Jorge treated the siblings as his own children, which is why E. thought of Jorge as his father and G. as his brother. Luis had not provided anything but partial court-ordered child support.
When mother was fired in 2011, she continued to call Luis periodically to see if he wanted to see E. On about 10 occasions, mother took E. to a parking lot where Luis worked so he could see him. There was no further contact after mother started to see Gustavo, because Gustavo was jealous. Jorge, however, continued to see the boys. When the children were taken, mother found Luis so he could be involved, but he did not have a prior relationship with E. and E. identified Jorge as his father.
Jorge's attorney submitted an offer of proof that Jorge was still legally married to mother, they were married and living together a year and a half before G. was born, and Jorge was present at G.'s birth. G. visited Jorge in Mexico, and his friends and family there knew G. as his son. In addition, E. called him "dad."
Luis testified that everything in his JV-505 was true and correct to the best of his knowledge. At his last visit with E., "[t]he kid was - as soon as he saw me come in, he runs to me, calls 'Daddy. Daddy.' And then I brought some stuff out of the bag."
On cross-examination by county counsel, Luis admitted that while the social worker offered him visits when E. was placed in protective custody on October 24, and told him on two occasions how to arrange for visits, he did not visit E. until November 29. Between October 24 and November 28, he tried to call once to arrange visits, but never received a return call, and it was not until the November 28 hearing, when his attorney handed a phone to Luis and told him to call to arrange a visit, that he actually did so. Asked when he last saw E. before that first visit, Luis responded it was "quite a bit ago" - he thought E. was seven.
Luis confirmed that a social worker had given him a referral for services at Sierra Vista and remembered the court telling him it was important to engage in services. Luis had not signed up for services, however, because he was not sure "if we are going to continue . . . that much of this" and his adult son told him to wait until he spoke with his lawyer.
The last time Luis saw E. was at was at the beginning of 2016, when mother brought E. to the parking lot of Foster Farms so Luis could see him after he got off work. This was where he saw E. "[m]ost of the time." Luis claimed he saw E. "a lot of times" at E.'s home, and that he saw him there "mostly every weekend." E. never lived with Luis and Luis never took E. to Luis's family, as "she don't give me no permission to bring him over." Luis never tried to obtain court-ordered visitation. Despite Luis's statement in his declaration that he provided mother with money, Luis denied giving mother money and said that he bought things at Wal-Mart, which he brought to mother and E.
Luis did not know where E. went to school before he was taken into protective custody, or the name of E.'s teacher. He believed E.'s favorite color was purple and he liked to play video games because E. asked him to buy them. Luis believed E.'s "oldest brother" was E.'s best friend; E. had not told him whether he had a best friend outside the family. Luis did not know who E.'s doctor was before he was taken into custody.
On cross-examination by the children's counsel, Luis testified that E. never spent weekends with him. He never asked mother to allow E. to spend the night at his house. When asked if it bothered him that E. never got to spend the night with him, Luis answered, "No, not bother me at all[,]" and added "[h]e can come to my house anytime." On re-direct, Luis's attorney asked the last thing Luis said. Luis answered, "I said it don't bother me at all if my son come to my house." Luis testified that was because "I love him. He is my son."
County counsel submitted a rebuttal offer of proof that G., who had a close relationship with E. and had lived with E. all of E.'s life, would testify that E.'s favorite colors were red and blue, and E.'s hobbies include drawing, watching television, and playing on his tablet.
Mother's attorney submitted a rebuttal offer of proof that mother would testify she offered Luis time, visitation and contact with E., but Luis rejected those offers and mother believed E. was not welcome in Luis's home. Moreover, Luis did not go to doctor's appointments and had never attended a single school event or parent/teacher conference. The juvenile court accepted both offers of proof.
At the close of evidence, county counsel argued there was no provision of law by which Luis could be elevated to presumed father status because he had never received E. into his home. The Agency believed Luis should have a place in E.'s life, but the two would need to get to know each other better before any change in custody could be contemplated. The Agency did not object to Luis visiting E. and trying to build a relationship with him, as long as E. enjoyed the visits and they met his interests, but Luis had not done anything to elevate his status, E. did not see him as his father, and Luis had not acted as a father. County counsel conceded that Luis was E.'s biological father, which was determined in the child custody proceeding, but that did not make him a presumed father and therefore he could not demand placement of E. under section 361.2. E.'s counsel agreed that Luis did not meet the criteria for presumed father status and hoped that Luis would start visiting E. and become a part of his life.
Luis's attorney argued that with respect to presumed father status, the first eight and a half years of E.'s life did not matter. Instead, the only day that really mattered was the day E. was taken into protective custody and Luis's parental rights were jeopardized, which was when Luis stepped up and requested visits and custody. The attorney asserted Luis had done everything he could from the time of removal to elevate his status, and asked the court to find him a presumed father so E. would have an opportunity to have his father.
During argument, Luis's attorney asserted that Luis's responses to county counsel's questions showed there were language barriers and comprehension issues. The juvenile court noted that Luis was offered and refused a Spanish language interpreter for the hearing, and therefore he could not hide behind a failure to understand. Luis's attorney responded that Luis's language of origin was Portuguese, so a "Spanish language interpreter drives him crazy." The court replied that Portuguese language interpreters also were available.
Mother's attorney asserted that Jorge was the person who had been a father to E. and the relationship between Jorge and the boys was significant. Jorge's attorney reminded the court of Jorge's comments that while there was no possibility he fathered E., he considered himself to be E.'s father, and that E. referred to him as "dad."
The juvenile court found that Luis was not an alleged father but he was, at a minimum, a biological father based on the DNA testing and order for child support. The question then was whether Luis's status should be elevated to presumed father. The evidence did not establish that Luis openly held E. out to his family as his own or took E. into his home. The juvenile court did not believe Luis established any real relationship with E. and questioned his credibility when he said that E. would run up and say "Daddy. Daddy[,]" since a daddy would know what his child likes, his child's friends, and what was going on in his child's life. The juvenile court welcomed Luis to learn these things, but based on the evidence presented, Luis was not a presumed father. Accordingly, the court found him to be E.'s biological father.
The juvenile court noted that it was only dealing with the issue of parentage at the hearing, because Gustavo had been located and the jurisdiction and disposition hearings needed to be continued so he could receive notice. The court set the jurisdiction and disposition hearing for February 24, 2017. County counsel then asserted that because Jorge and mother were still married, the Agency's position was that Jorge was the presumed father of G. and E. due to the marriage "until the Court makes a different order." The juvenile court stated the issue would be addressed again later and an addendum report might be helpful, adding that Luis was entitled to ongoing visits if he wanted them. When the clerk asked if Jorge's attorney should be added to E.'s case, county counsel responded that Jorge was the presumed father of G. and E. by marriage, so Jorge was a party as to both children "at least until further order." Jorge's attorney agreed and the clerk, with the court's approval, added Jorge's attorney to the calendar.
In an addendum report for the February 24, 2017 hearing, the Agency recommended that reunification services be offered to Gustavo, as the presumed father of the girls due to his signing their birth records, and Jorge, as the presumed father of the boys, as well as to mother. The Agency recommended, without explanation, that Luis be denied services.
In case notes attached to the report, it was noted that on January 9, 2017, a social worker spoke with E. and asked how visits with Luis were going. E. said they were going well and he likes his dad, Luis, because he brings him food and buys him stuff. E. wanted to live with his dad three days a week and the rest of the time with his mother or grandmother. The social worker asked E. if he would still like his dad if he didn't buy him things; E. responded, "maybe." The social worker spoke with E. the next day; E. said he did not want to live with his dad anymore because three days would be too long, but he wanted to keep visiting him.
Between November 29, 2016 and January 17, 2017, Luis had six visits with E. Two visits during that period were cancelled by the Agency. Luis cancelled a visit on January 24, 2017 because he was ill. On February 7, 2017, the social worker received a text message from father, who did not call or show up for a visit with E. the prior week, in which he stated he no longer wanted to visit E.
The jurisdiction and disposition hearing was continued from February 24 to March 6, 2017, so G. could be present. Luis did not appear at either hearing. At the March 6 hearing, the juvenile court stated it had read and considered the Agency's reports. When the court asked if the Agency had comments, county counsel only stated that the Agency would be amending Gustavo's service plan. Luis's attorney objected with no evidence. Jorge's attorney made an offer of proof, which the parties and court accepted, that Jorge would testify he would do all that was required; he had gone to the Desarrollo de la Familia office in his town and was told that a request needed to be sent there so he could receive services as the father of G. and E.; and he wanted to be notified of any updates or changes when they occurred. None of the attorneys offered argument.
The juvenile court confirmed with county counsel that Jorge was the presumed father of G. and E. On its own motion, the court amended the petition to provide that Jorge was the presumed father of G. and E., Luis was the biological father of E., and Gustavo was the presumed father of the girls. Also on its own motion, the court amended the section 300, subdivision (g) allegation according to proof to provide that Jorge was in Mexico and unable to provide care for G. and E. With those amendments, the juvenile court found the petition to be true and the children were described by section 300, subdivisions (b)(1) and (g). The court approved and adopted the findings and recommendations in the addendum report; adjudged the children dependents; removed them from parental custody; amended Gustavo's case plan; granted reunification services to mother, Jorge and Gustavo; and denied reunification services to Luis pursuant to section 361.5, subdivision (a). The juvenile court ordered once a month visits for Luis with E.
DISCUSSION
A father's status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.) "There are three types of fathers in juvenile dependency law: presumed, biological, and alleged. [Citation.] A presumed father is a man who meets one or more specified criteria in [Family Code] section 7611. A biological father is a man whose paternity has been established, but who has not shown he is the child's presumed father. An alleged father (although not relevant here) is a man who has not established biological paternity or presumed father status. [Citation.] These categories are meant to 'distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.' " (In re P.A. (2011) 198 Cal.App.4th 974, 979-980 (P.A.).)
"Presumed father status ranks highest." (In re Jerry P. (2002) 95 Cal.App.4th 793, 801 (Jerry P.).) ". . . [O]nly a presumed, not a mere biological, father is a 'parent' entitled to receive reunification services under section 361.5," and custody of the child under section 361.2. (In re Zacharia D. (1993) 6 Cal.4th 435, 451; Jerry P, supra, 95 Cal.App.4th at p. 801.) "In contrast, a biological father is not entitled to these rights merely because he wants to establish a personal relationship with his child." (P.A., supra, 198 Cal.App.4th at p. 980.) Reunification services, however, may be provided to a biological father who is not also a presumed father "if the court determines that the services will benefit the child." (§ 361.5, subd. (a).)
"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 child, rather than any biological connection." (In re J.L. (2008) 159 Cal.App.4th 1010, 1018 (J.L.).) To become a presumed father, a man must fall within one of the categories enumerated under 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." (J.L., supra, 159 Cal.App.4th at p. 1018; In re E.O. (2010) 182 Cal.App.4th 722, 726-727 (E.O.).) ". . . [A] man who has neither legally married nor attempted to legally marry the child's natural mother cannot become a presumed father unless (1) he receives the child into his home and openly holds out the child as his natural child, or (2) both he and the natural mother execute a voluntary declaration of paternity." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595-596.) A paternity judgment does not, by itself, require that a man be declared a presumed father, as that is not one of the ways set forth in Family Code section 7611 that a man can achieve presumed father status. (E.O., supra, 182 Cal.App.4th at p. 727.)
Luis does not challenge the juvenile court's decision not to elevate him to presumed father status. In fact, he "accepts that he never perfected his paternity to be considered a presumed father of E[]." Moreover, he "does not challenge the finding of his biological paternity and the legal limitation of that designation." Instead, Luis objects to the juvenile court naming Jorge as E.'s presumed father and providing reunification services to Jorge which, Luis contends, required the juvenile court to deny him reunification services pursuant to In re Elijah V. (2005) 127 Cal.App.4th 576 (Elijah V.). He urges us to reverse the finding that Jorge is E.'s presumed father, arguing it is not supported by substantial evidence, as well as the denial of reunification services to him, as it would be in E.'s best interest to provide him services.
For the first time in his reply brief, Luis argues that his paternity judgment entitled him to full participation in the case, including an offer of reunification services, and that he was not obligated to request services under section 361.5, subdivision (a). A similar argument was rejected in E.O., supra, 182 Cal.App.4th at pp. 727-728, on the issue of whether a paternity judgment conferred presumed father status. There, the appellate court held that a paternity judgment in a child support action did not make a biological father a presumed father, as it was not one of the ways to achieve presumed father status listed in Family Code section 7611, and the paternity judgment and presumed father status were concerned with two different issues - the first was a judicial determination that a parent-child relationship existed, while the second involved whether a man had promptly come forward and demonstrated a full commitment to his parental responsibilities. (E.O., supra, 182 Cal.App.4th at pp. 727-728; accord, In re Cheyenne B. (2012) 203 Cal.App.4th 1361, 1376-1377.) Since the paternity judgment did not make Luis a presumed father, the juvenile court correctly found him to be a biological father, which meant it had discretion to offer him services under section 361.5, subdivision (a).
Luis's argument is based on a faulty premise - that the juvenile court denied him services because it found Jorge to be E.'s presumed father. There is nothing in the record to suggest the decision to deny him services was based on anything other than the standard articulated in section 361.5, subdivision (a) - that providing services to Luis would not benefit E. The Agency's reports do not state that services should be denied Luis on that basis and the juvenile court did not make such a finding.
Moreover, contrary to Luis's assertion, the awarding of presumed father status to Jorge did not preclude the juvenile court from offering reunification services to him. In Elijah V., the case Luis relies on, the appellate court rejected a biological father's argument that the juvenile court abused its discretion in not granting him services in part because the court "believed" a juvenile court "may not" order services for a biological father when a conclusively presumed father existed. (Elijah V., supra, 127 Cal.App.4th at pp. 588-589.) The appellate court explained that when "[t]he purpose of services is to resolve the problems that led to the dependency and thereby reunify the family. [Citation.] When the biological father has not parented the child and there is a conclusively presumed father who has, it is that man who should receive services because the child's best interests are served by being reunified with the person who has acted in a parental role, not the person who claims paternity by virtue of only a biological tie." (Ibid.)
We see nothing in section 361.5, subdivision (a), however, that precludes a juvenile court from ordering reunification services for a biological father when a presumed father exists. The statute does not state that a biological father must be denied services if there is a presumed father who received services - to the contrary, it states that "[u]pon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child." (§ 361.5, subd. (a).)
Moreover, there are circumstances under which it would be appropriate to offer services to a biological father even when a presumed father exists. For example, in In re J.H. (2011) 198 Cal.App.4th 635 (J.H.), the appellate court held the juvenile court erred in denying an alleged father's request for a paternity test because, if found to be a biological father, he could be offered reunification services despite the fact that another man was the child's presumed father. (Id. at pp. 648-650.) The appellate court distinguished Elijah V., as the social services agency was not attempting to reunify the family since the presumed father was in prison and did not expect to be released before the end of the reunification period, the mother was no longer in a relationship with the presumed father, and mother objected to visits between the presumed father and the child due to domestic abuse the child witnessed. (J.H., supra, 198 Cal.App.4th at p. 649.)
Similarly here, Jorge, who was separated from mother, was unlikely to reunify with E. as Jorge was in Mexico and could not travel to the United States, and he preferred that the boys remain in the United States. Thus, this was not a case in which the Agency was attempting to reunify the family. In light of the unlikelihood that Jorge would be able to reunify with E., the juvenile court certainly could have offered services to Luis.
Jorge's presumed father status did not preclude the juvenile court from offering reunification services to Luis. The juvenile court, however, did not abuse its discretion in declining to do so. Luis argues it would benefit E. to offer him services because he was paying child support, he provided items to mother before their breakup and when he visited E. thereafter, and he began visiting E. once the dependency proceedings began. He asserts that he is a better person than Jorge or Gustavo, as he never engaged in domestic violence, he held a steady job, and he reared two children to adulthood during his long-term marriage. He points out that he was willing to take E. into his home, but also was supportive of him remaining with his siblings, and contends he is the only adult male in E.'s life who could assist him in becoming a stable, well-adjusted adult.
Luis, however, ignores the evidence that supports the trial court's decision. He had a minimal relationship with E. and did not make any real efforts toward improving it. Before child welfare involvement, he did not seek custody of E. or formal visitation orders; instead, he was content to allow mother to raise E. He had not seen E. for at least a year before the dependency proceedings began, he did not immediately seek visits once E. was removed, and while he did visit E. six times thereafter, once the juvenile court determined he was not a presumed father, he declined further visits with E. Luis did not appear at the jurisdiction and disposition hearing, and his attorney did not push for reunification services. The juvenile court acted well within its discretion in refusing to attempt to effect that which Luis could never be bothered to work toward himself. To the extent that visitation with Luis benefitted E., Luis was afforded visits. The trial court did not abuse its discretion in denying Luis services. (In re Sarah C. (1992) 8 Cal.App.4th 964, 976 [a decision to deny reunification services to a biological father is reviewed under an abuse of discretion standard].)
Since the juvenile court was not precluded from offering services to Luis by its finding that Jorge was E.'s presumed father and the juvenile court did not abuse its discretion in denying services to Luis, it is irrelevant whether the juvenile court erred in designating Jorge as E.'s presumed father. Moreover, Luis lacks standing to challenge the juvenile court's finding as to Jorge. (J.H., supra, 198 Cal.App.4th at p. 647 [alleged biological father did not have standing to challenge finding that another man was presumed father]; In re Eric E. (2006) 137 Cal.App.4th 252, 262 [biological father had no standing to challenge finding that another man was presumed father].) This is not a case in which two men qualified to be presumed fathers, and the juvenile court was therefore required to weigh the competing presumptions. (In re Jesusa V. (2004) 32 Cal.4th 588, 603.) Accordingly, we do not decide whether the juvenile court erred in finding Jorge to be E.'s presumed father.
DISPOSITION
The orders denying presumed father status to Luis and denying reunification services to Luis are affirmed.