In re Maya C.
Filed 11/4/13 In re Maya C. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re MAYA C., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
MARTIN D.,
Defendant and Appellant.
D063935
(Super. Ct.
No. NJ13821A)
APPEAL from
an order of the Superior Court
of
County, Michael J. Imhoff, Commissioner. Affirmed.
William
Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Maryann M.
Milcetic, under appointment by the Court of Appeal, for Minor.
Martin D.
appeals the juvenile court's order denying his request for paternity testing in
the dependency case of child Maya
C. Martin contends the court erred as a
matter of law by denying the request.
THE FIRST DEPENDENCY
In January
2008, the San Diego County Health and
Human Services Agency (the Agency) filed a dependency petition on behalf of
one-year-old Maya. The petition was
based on heroin use by her mother, S.C., and S.C.'s boyfriend, alleged father
Donnie M. Maya was detained at Polinsky
Children's Center and then with maternal aunt Sandra P.
Maya's
birth certificate did not list a father.
In her parentage questionnaire, S.C. declared under penalty of perjury that
Donnie was Maya's biological father.
Donnie confirmed this. In May
2008, the juvenile court found that Donnie was Maya's presumed father (Fam.
Code, § 7611, subd. (d)).
name="_ftnref2" title="">[2]
At the same time, the court entered a
judgment of parentage which stated "Donnie M[.] is declared to be the
presumed father of . . . Maya C[.]"
The court
entered a true finding on the petition, ordered Maya placed with a relative and
ordered reunification services for S.C.
and Donnie. In September 2008, the court
terminated Donnie's reunification services.
In March 2009, Maya began a trial visit with S.C. In August, the court entered a judgment awarding
S.C. sole legal and physical custody of Maya, naming Donnie as the father and
terminating dependency jurisdiction.
THE SECOND DEPENDENCY
In
September 2012, when Maya was nearly six years old, S.C. was arrested for
selling drugs and child endangerment. S.C.'s
live in boyfriend, Jesus M., was also arrested.
S.C. was pregnant with Jesus's child with a due date in January 2013. Maya called Jesus "dad."
On the day
of her arrest, S.C. stated, for the first time, that Martin was Maya's father. She also said he had never met Maya. Several days later, in a parentage
questionnaire, S.C. declared under penalty of perjury that Martin was the
biological father. She further declared
that when she told him he was Maya's father, "he denied it and stopped
talking to me" in February 2006.
The Agency
filed a dependency petition based on S.C.'s drug use and failure to protect by
Maya's "father." The petition
named Donnie as the presumed father and Martin as the biological father. Both Martin and Donnie were in prison. Donnie had a release date of September
2013.
At the
detention hearing, the court amended the petition to reflect that Martin was an
alleged father. The court appointed
counsel for Martin as an alleged father and for Donnie as the presumed father. Maya was detained in a foster home.
In October
2012, Martin waived his right to appear at the jurisdictional hearing. In November, he was released from
prison. In December, he was served with
the petition and contacted the social worker.
Martin told the social worker "that he had received some kind of
notice while he was in prison but he knew that he would be getting out and
decided to wait until then to respond."
Martin also said that "S.C. was seeing both Donnie and I" and she
"always said Maya could be mine or another guy's baby."
2010, S.C. asked him to submit to a paternity test, but he went to prison
before testing. S.C. then wrote to him
that he "should be getting paperwork," but he "never heard from
her again." Martin told the social
worker that he wanted a paternity test to determine whether he was Maya's
father; if he was, he wished her to be placed with his family. Martin's two sisters and his parents were all
willing to have placement. When the social worker said that Maya and her sister
shared a close bond and should stay together, Martin replied that he was not
sure whether his family would also be willing to care for the sister.
Donnie told
the social worker that he did not know whether he was Maya's father. Donnie said that he visited Maya when he was
not incarcerated, and he had lived with her for "short periods of time,
approximately two years, on and off."
In January
2013, Martin completed a paternity questionnaire in which he declared: "I think it's very possible I am the
father." Martin's counsel requested
paternity testing and stated that Martin wished to have visitation if he turned
out to be the father. The court denied
the request for testing without prejudice, citing the May 2008 judgment. Martin's counsel said she anticipated filing
a motion to set aside the judgment. At
the next hearing, Martin's counsel requested a continuance of the
jurisdictional and dispositional hearing so that she could file a Welfare and
Institutions Code section 388 petition to set aside the judgment. The court denied the request. The court entered a true finding on the
petition, ordered Maya placed in foster care, gave the Agency discretion to
place her with a relative and ordered reunification services for S.C. In February, Maya was moved to Sandra's
home.
In March
2013, Martin filed a Statement Regarding Parentage (form JV-505), in which he requested
paternity testing, and supporting points and authorities. In the statement regarding parentage, Martin
checked a box next to the statement "I do not know if I am the parent of
the child . . . ." At a hearing the next day, the court denied the
request for testing without prejudice, stating "Again, there is a 2008
judgment of paternity, and I believe the proper remedy is to directly attack
that judgment rather than collaterally attack it."
DISCUSSION
"Family Code section 7636 provides a paternity
judgment 'is determinative for all purposes except for actions brought pursuant
to Section 270 of the Penal Code.' [¶]
The existence of a valid paternity judgment bars the use of blood test evidence
in a subsequent proceeding to overturn a paternity determination. [Citation.]
[¶] In other words, for [the appellant's] paternity testing request to
go forward, he had to succeed in setting aside the existing paternity judgment." (In re
Margarita D. (1999) 72 Cal.App.4th 1288, 1296; see also
982-983.) Setting aside the judgment
requires a showing of extrinsic fraud, mistake or accident. (In re
Margarita D., at pp. 1294-1296.)
In 2008,
the juvenile court entered a judgment that Donnie was Maya's presumed
father. That judgment is determinative
here and may not be overturned by paternity test results. In order for Martin to prevail in his request
for paternity testing, he was required first to succeed in a motion to set
aside the judgment. He never moved to
set aside the judgment.
The
authorities on which Martin relies are inapposite. For example, In re J.H. (2011) 198 Cal.App.4th 635 is legally distinguishable in
that there was no prior parentage judgment and factually distinguishable in
that the appellant had a relationship with the child (id. at p. 650). In
there was no prior judgment and no evidence that the mother ever told the
appellant he might be a father.
DISPOSITION
The order
is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
name="_ftn1" title="">[1]
Maya's former trial counsel
opposed testing. Her current trial
counsel and her appellate counsel support testing.
name="_ftn2" title="">[2]
Family Code section 7611
states: "A man is presumed to be
the natural father of a child if . . . [¶] . . . [¶]
(d) [h]e receives the child into his home and openly holds out the child as his
natural child." (
There
has never been any paternity testing or any finding of biological
paternity.
