In re Byron C.
Filed 5/22/08 In re Byron C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re BYRON C., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.C., Defendant and Appellant. | D051923 (Super. Ct. No. J516813) |
APPEAL from an order of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed.
L.C., the alleged father of Byron C., appeals the juvenile court order denying him presumed father status in Byron's child dependency proceeding. L.C. challenges the sufficiency of the evidence to support the court's finding that he did not meet the criteria of a presumed father under Family Code section 7611, subdivision (d).[1]L.C. also contends the court erred by admitting into evidence the attachments to the social worker's reports, and he was denied due process because the paternity form used did not adequately inform him of his rights and responsibilities as a father.
FACTS
On August 22, 2007, the San Diego CountyHealth and Human Services Agency (Agency) filed a dependency petition on behalf of Byron, then 20 months old, alleging he was at risk of serious physical harm because his mother, Gabriela C.,[2]and her boyfriend, L.C., engaged in domestic violence. (Welf. & Inst. Code, 300, subd. (a).)
During one incident, L.C. reportedly hit Gabriela on the back of the head and kicked her on the back side while she was holding Byron. On another occasion, L.C. reportedly inflicted a facial injury to Gabriela while outside a Target store and then left. When the maternal grandmother pursued L.C. to retrieve Byron's car seat, he threw the car seat in the street and drove away.
Gabriela and L.C. had lived together off and on since Byron was two months old. During this time, Gabriela left L.C. several times after arguments and/or domestic violence incidents, but continued to return to live with L.C. Gabriela identified K.T. as Byron's biological father, whose whereabouts were unknown.
At the detention hearing, the court appointed counsel for Gabriela and for L.C., who requested presumed father status on the basis that he had received Byron into his home and held him out as his own child. In his paternity questionnaire form, L.C. declared that Byron had lived with him most of the child's life, and he had supported Byron by providing food, clothing and shelter. L.C. did not answer the question whether he told anyone that he was Byron's father. L.C. also said he was not sure that he was Byron's biological father "because there was another man involved with the mother. . . ." The court deferred ruling on L.C.'s request for presumed father status at the joint request of Agency, counsel for Gabriela and counsel for Byron. Byron was detained with the maternal grandmother.
On September 12 the court sustained the dependency petition, removed Byron from Gabriela's custody and placed him in the grandmother's home. The court also ordered reunification services for Gabriela. L.C. renewed his request for presumed father status, but Agency objected, and the court set a contested hearing on the issue.
On October 16 the court found L.C. had not shown by a preponderance of the evidence that he qualified as a presumed father.
DISCUSSION
I
Juvenile dependency law recognizes presumed fathers, alleged fathers and biological fathers. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) Paternity status is important because it determines a father's rights in a dependency case and the extent to which he may participate in the proceedings. (Ibid.) A presumed father, as defined by section 7611, is entitled to appointed counsel, custody (if there is no finding of detriment) and reunification services. (In re Kobe A., supra, at p. 1120.) A biological father is an individual whose paternity has been established, but who has not shown he qualifies as the child's presumed father under section 7611. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The juvenile court may provide reunification services to a biological father if it finds services will benefit the child. (Welf. & Inst. Code, 361.5, subd. (a).) An alleged father is a man who has not established paternity or presumed father status. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) An alleged father is not entitled to appointed counsel or to reunification services. (In re Kobe A., supra, at p. 1120.) An alleged father's due process rights are satisfied by giving him notice and an opportunity to appear, assert a position and try to change his paternity status. (Ibid.)
II
L.C. contends he met the criteria for presumed father status. The contention is without merit.
L.C. asserted that he had presumed status under section 7611, subdivision (d). Under this provision, L.C. had the burden of establishing by a preponderance of the evidence that he received Byron into his home and openly held out Byron as his natural child. ( 7611, subd. (d); In re A.A. (2003) 114 Cal.App.4th 771, 782.) We review the juvenile court's denial of presumed father status under the substantial evidence test. (In re A.A., supra, at p. 782.)
Although the record is somewhat ambiguous as to what periods of time that Gabriela and Byron lived with L.C., there was substantial evidence that L.C. lived with Gabriela and Byron for the majority of the child's life. Assuming this constituted substantial evidence that L.C. received Byron into his home, L.C. cannot prevail because the evidence was insufficient to support the second prong of section 7611, subdivision (d)namely, that L.C. "openly and publicly" held out Byron as his natural child. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.)
In his paternity questionnaire, L.C. did not answer the questions whether he told anyone that he was Byron's father and, if so, whom he had told. When asked at trial if he ever told anyone that Byron was his son, L.C. replied: "It was like this. People who look at him tell me that's my son. I never told them no." L.C. went on to state that initially he was not sure if Byron was his son, but as time went on, it did not matter. L.C. stated, "After a while, he became my son regardless."
L.C. showed ambivalence about whether he was Byron's natural fatherstating that another man may have fathered Byron. "I believe that I am the father, but I believe there's a chance that I might not be," L.C. testified under cross-examination. Moreover, during all of the separations between Gabriela and L.C., Gabriela took Byron with her, and L.C. did not object or go to court to try to stop her from removing Byron. Nor did L.C. visit Byron during these separations. L.C. was quite content not to play a role in Byron's life during the separations. These are not the actions of a man who holds out a child as his own. Remaining silentor not saying "no"is not publicly holding out someone as your child.
This basically is a case in which L.C. was cohabiting with Byron's mother. (See Miller v. Miller (1998) 64 Cal.App.4th 111, 118 [stepfather did not meet requirement of taking child into his home where presence of child was the result of stepfather living with child's mother].) Although L.C. was fond of Byron and occasionally helped in his care, that is not enough. What was lacking was the necessary level of commitment by L.C. to Byron that is required for the elevated status of presumed father. The juvenile court could reasonably conclude that L.C.'s conduct was equivalent to that of a cohabitant of Byron's mothersomeone who occasionally pitched in and looked after the child when Gabriela was unavailable. In other words, what L.C. did for Byron was incidental to his relationship with Gabriela.
III
L.C. contends that the court erred at the paternity hearing by admitting the attachments to the detention report as evidence. L.C.'s counsel objected to the admission of this documentary evidence on hearsay and relevancy grounds. We agree the information contained in the attachments was hearsay and, under the circumstances, should not have been admitted.
However, "[e]videntiary rulings will be deemed harmless if the record demonstrates the judgment was supported by the rest of the evidence properly admitted." (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1122.) In part II, ante, we have shown there was substantial evidence to support the court's finding that L.C. did not bear his burden to show he qualified as a presumed father under section 7611, subdivision (d). None of the evidence we relied upon was from the attachments. We conclude the introduction into evidence of the attachments did not prejudice L.C. in this bench trial.
IV
L.C. contends notice regarding paternity was defective and his due process rights were violated because he was not served with Judicial Council form JV-505 (entitled Statement Regarding Parentage), which informs alleged fathers of their rights and options.
Welfare and Institutions Code section 316.2 provides the statutory procedure that protects an alleged father's limited due process rights. The clerk of the juvenile court is to provide notice to an alleged father "that he is or could be the father of the child." (Welf. & Inst. Code, 316.2, subd. (b).) The statute also requires the clerk to include Judicial Council form JV-505 with the notice. (Ibid.)[3] Form JV-505 allows an alleged father to indicate his position with regard to paternity and representation by counsel and advises him of his rights and options. (In re Kobe A., supra, 146 Cal.App.4th at p. 1121.)[4]
L.C. did not raise the issue of not receiving the JV-505 form at the trial level.
The court appointed counsel for L.C. at the detention hearing. At that hearing, L.C.'s counsel, who was presumably aware of form JV-505 and the issues that could be raised regarding paternity, asked for a judgment of paternity under section 7611, subdivision (d). The other parties asked for the paternity issue to be deferred pending paternity testing. The issue of paternity was raised at subsequent hearings as well, and neither counsel nor L.C. informed the court that L.C. had not been provided with form JV-505. By his silence and acquiescence, L.C. has forfeited his right to claim lack of notice with respect to the form. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
Regardless of the forfeiture, any error in not providing L.C. with form JV-505 was harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-395 [error in notice does not automatically require reversal, but is reviewed to determine whether it is harmless beyond a reasonable doubt].) L.C. knew Bryon was in the dependency system, and he had actual notice of the hearings and the benefit of appointed counsel, who at the earliest opportunity, sought to establish paternity on his behalf. This is not a case where an alleged father was unaware of his potential paternal rights. (Cf. In re Paul H. (2003) 111 Cal.App.4th 753, 762.) Under these circumstances, we cannot say L.C. would have obtained a more favorable result had JV-505 been provided to him. (In re Kobe, supra, 146 Cal.App.4th at p. 1123.) No due process violation occurred.
DISPOSITION
The order is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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[1] Statutory references are to the Family Code unless otherwise noted.
[2] Gabriela is not a party to this appeal.
[3] Welfare and Institutions Code section 316.2, subdivision (b) provides in relevant part: "If, after the court inquiry, one or more men are identified as an alleged father, each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice."
[4] L.C.'s request that we take judicial notice of a new form JV-505, which was put into use on January 1, 2008, is denied. (Evid. Code, 459.) The detention hearing took place August 22, 2007.
