In re Blake G.
Filed 7/23/12 In re Blake G. CA2/7
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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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re BLAKE G., a Person Coming
Under the Juvenile Court Law.
B236846
(Los Angeles
County
Super. Ct.
No. CK87145)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRENT G.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Timothy R. Saito, Judge. Affirmed.
Andre F.F.
Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
Tracey F. Dodds, Principal County Counsel, for Plaintiff and Appellant.
_______________
Brent G.
appeals from the juvenile court’s order finding him the presumed father of
Blake G., contending Family Code section 7540’s presumption of paternity is
inapplicable because he is sterile and there was
Blake’s mother at the time of Blake’s birth.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Blake was born at Riverside
Community Hospital
in November 2002. Melissa P. was listed
as his mother; Brent as his father. The
certificate of live birth, which used the same last name for both Blake and
Brent, was signed by Brent, who verified the information it contained was true
and correct.
The
Family Services (Department) received a referral on March 14, 2011 alleging eight-year-old Blake and
his four-year-old half-sister, Arianna M., were suffering emotional abuse as a
result of witnessing on-going domestic violence between their mother and
Arianna’s father, Brian M. The two
children were detained and placed in the home of their maternal
great-grandmother and great-grandfather.
The Department filed a petition pursuant to Welfare and Institutions
Code section 300, subdivisions (a) (serious physical harm) and (b) (failure to
protect).
In its March 23, 2011
the court Melissa had indicated she originally believed Brent was the
biological father of Blake, but a recent genetic test had determined he was
not. The report continued, “Mother
stated at this time she is not sure who the father may be.”
On the date of the detention
hearing Melissa completed a “parentage questionnaire” stating she had married
Brent on September 20, 2002 and separated from him in 2003. At the hearing itself Melissa’s counsel told
the court Melissa was still married to Brent, their marriage had taken place
prior to Blake’s birth and Melissa and Brent were living together when the
child was conceived and born. However,
her attorney also asserted the presumption Brent is Blake’s father was rebutted
by a DNA test, completed in February 2011, indicating there is a zero percent
probability of paternity. Melissa added
she had not been in a relationship with Brent for seven years. Because Brent was not present at the hearing
(it was subsequently learned he was incarcerated), the court deferred making
any paternity finding as to Blake.
name="_ftnref1" title="">[1] The court ordered the children remain placed
with their maternal great-grandparents.
The paternity issue was continued
several times and ultimately resolved following briefing and a hearing on
October 6, 2011. In the interim the
court sustained an amended dependency petition, finding Melissa and Brian had
engaged in violent altercations in the presence of the children and both had a
history of drug abuse. Blake and Arianna
were declared dependent children of the juvenile court and removed from
Melissa’s and Brian’s custody. Family
reunification services were ordered.
With respect to the issue of
Blake’s paternity, with its April 20, 2011 jurisdiction/disposition report the
Department submitted both the certificate of live birth signed by Brent and the
DNA test results concluding there was a zero percent probability of his
paternity. In the body of its report the
Department indicated Melissa had said she met Brent in 1998 and they started
living together in 1999. After providing
the results of the genetic testing, on page four the Department commented, “It
should be noted that Mr. G[.] is on the child’s birth certificate and the
mother reported that when the child was born she and Mr. G[.] were legally
married.” On page 14 of the same report,
however, the Department stated, “According to mother she became pregnant with
her son at the beginning of 2002. She
and Mr. G[.] were legally married after the birth of her son. Mother reported that Mr. G[.] is not the
biological father of Blake, as she had a casual relationship with another man
while she was cohabitating with Mr. G[.]
Blake was born while they were cohabitating and Mr. G[.] is the father
mentioned on the Birth Certificate. It
should be noted that mother stated that Mr. G[.] cannot have any children as he
is sterile. According to mother Mr. G[.]
had full knowledge that Blake was not his child.”
Following his release from prison
Brent appeared in court and requested a ruling he was not Blake’s father. Brent’s appointed counsel thereafter filed a
“motion seeking a declaration of the nonexistence of a father and child
relationship.” The moving papers, which
did not include a declaration from Brent, confirmed Brent was married to and
living with Melissa at the time of Blake’s birth and acknowledged the generally
conclusive presumption of paternity contained in Family Code section 7540
fell within the section 7541, subdivision (a),
paternity because the DNA test performed in February 2011 established he was
not Blake’s biological father. Counsel
insisted the limitations period for such DNA testing set forth in section 7541,
subdivision (b)
name="_ftnref5" title="">[5]—two
years from the child’s date of birth—was inapplicable because Brent had not
asked the court to order a blood/genetic test, one already existed and, in
fact, had been performed prior to any involvement by the Department with the
family.
The Department filed an opposition
to Brent’s motion, and the court heard argument on October 6, 2011. Brent did not appear. After hearing argument the court ruled the
presumption of paternity in section 7540 applied in this case, concluding the
genetic testing was not timely under section 7541, subdivision (b). The court reasoned the two-year limitations
period in that section barred all DNA reports, whether ordered by the court or
voluntarily obtained by the parties.
Blake’s presumed father. (See § 7611
[man is a presumed father if he meets the conditions stated in § 7540].)
CONTENTIONS
On appeal Brent has abandoned his
contention the genetic test conducted more than eight years after Blake’s birth
is timely and rebuts section 7540’s conclusive presumption of paternity because
it was not ordered by the juvenile court under section 7541. Instead, he now argues the court erred in
applying the section 7540 presumption because he is sterile and because there
was conflicting evidence whether he
had married Melissa before Blake was born.
DISCUSSION
1. Brent Has Forfeited Any Claim Section 7540 Does Not Apply Because He Is
Sterile
In discussing the question of
Blake’s parentage in its initial jurisdiction/disposition report, the
Department included Melissa’s statement, “Mr. G[.] cannot have any children as
he is sterile.” The Department’s report
did not disclose the basis for Melissa’s observation, and Brent’s purported
sterility was not addressed in his motion for a declaration of the nonexistence
of a father-child relationship.
Specifically, Brent did not assert section 7540’s conclusive presumption
of paternity was inapplicable because he is sterile. Accordingly, this argument has been
forfeited. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [forfeiture doctrine
applies in dependency proceedings]; In re
Wilford J. (2005) 131 Cal.App.4th 742, 754 [“[a]n appellate court
ordinarily will not consider challenges based on procedural defects or
erroneous rulings where an objection could have been but was not made in the
trial court”].)
Application of the forfeiture
doctrine is particularly appropriate here.
Case law defines sterility under section 7540 “in the strictest
sense.” (In re Marriage of Freeman (1996) 45 Cal.App.4th 1437,
1449.) Diminished or impaired fertility
is not enough: “It is limited to cases
where, by a preponderance of the evidence, a party can demonstrate that the
presumed father could not produce live sperm count at the time of conception.” (Ibid.) Because Brent failed to raise the issue in
the juvenile court and relies in this court solely on an isolated, hearsay
statement by Melissa in one of the Department’s reports, rather than on expert
medical testimony or even his own declaration describing his condition, we are
unable to determine whether the assertion of sterility is based in fact, let
alone how it measures against the strict definition properly accorded the
term.
2. Substantial Evidence Supports the Juvenile Court’s Finding Brent and
Melissa Were Married At the Time of Blake’s Birth
As discussed, the Department’s
jurisdiction/disposition report states both that Melissa had said she and Brent
were legally married when Brent was born (on page four) and that she and Brent
were legally married after Brent’s birth (on page 14). Emphasizing the second statement while
disregarding the first, Brent asserts the only evidence he was in fact married
to Melissa before Brent’s birth is a statement by Melissa’s counsel at the
detention hearing in March 2011 and argues, in effect, this evidence is
insufficient to trigger the section 7540 conclusive presumption of
paternity.
Brent significantly misrepresents
the record. In addition to the statement
on page four of the jurisdiction/disposition report that he ignores, Melissa
herself completed a parentage questionnaire on March 23, 2011 stating she had
married Brent on September 20, 2002, a date prior to Blake’s birth. Moreover, Brent conceded he was married to
and living with Melissa at the time of Blake’s birth in his motion seeking a
declaration of the nonexistence of a father-child relationship. Consequently, even if the statement on page
14 of the jurisdiction/disposition report is not simply a mistake, substantial
evidence supports the juvenile court’s finding Blake is “the child of a wife
cohabiting with her husband” within the meaning of section 7540. (See In
re Savannah M. (2005) 131 Cal.App.4th 1387, 1393 [when the factual
basis for a juvenile court’s finding or order is challenged on appeal, the
reviewing court must determine if there is substantial evidence, contradicted
or uncontradicted, that supports it]; In
re Ricardo L. (2003) 109 Cal.App.4th 552, 564 [same].)
DISPOSITION
The juvenile court’s order is
affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
court found Brian was the presumed father of Arianna.
the pendency of this appeal the juvenile court terminated its suitable
placement order as to Blake and ordered a home-of-parent-mother placement under
the continuing supervision of the Department.
Because Melissa now resides in San Bernardino County, it appears the
court also ordered the case transferred to the juvenile court in that county,
which is within the Fourth Appellate District.
That transfer does not affect our jurisdiction to resolve Brent’s
appeal. (See In re Lisa E. (1986) 188 Cal.App.3d 399, 404-405 [appellate
court retains jurisdiction over appeal in dependency action even though case
has been transferred to another county in different appellate district;
decision is binding on the superior court in the transferee county].)
