Filed 5/29/13 In re Dayton J. 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 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opinion has not been certified for publication or ordered published for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 DAYTON
J., a Person Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
DUSTIN H.,
Defendant and Appellant;
WILLIAM C.
Defendant and Respondent.
D062820
(Super. Ct.
No. J518453A)
APPEAL from
orders of the Superior Court
of
County, Carol Isackson, Judge, and Richard J. Neely, Juvenile
Court Referee. Affirmed.
Christopher
Blake, under appointment by the Court of Appeal, for Defendant and Appellant
Dustin H.
Kathleen
Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and
Respondent William C.
Thomas E.
Montgomery, County Counsel, John E.
Philips, Chief Deputy County Counsel and Dana C. Shoffner, Deputy County
Counsel, for Plaintiff and Respondent.
Valerie N.
Lankford, under appointment by the Court of Appeal, for Minor.
Dustin H.
appeals juvenile court orders declaring William C. to be Dayton J.'s presumed
father, ordering Dayton placed with
William and terminating jurisdiction.
Dustin contends the court erred by denying his request for paternity
testing and the court misinterpreted the legal effect of a stipulation he
executed with Dayton's mother, Amanda J., regarding paternity. He also argues he is Dayton's
presumed father under Family Code section 7611, subdivision (c)
and the court incorrectly weighed the presumptions of section 7611, subdivision
(d) to determine that William, rather than he, is Dayton's
presumed father. We affirm the orders.
FACTUAL AND
PROCEDURAL BACKGROUND
Dayton
was born in 2008. During his young life,
he lived sometimes with Amanda and Dustin, sometimes with William, sometimes
with William and Amanda, and at other times with the maternal
grandparents. Both Dustin and William
had cared for Dayton and each man held him out to be his son. William and Amanda's older son, Gage C.,
lived with William. Amanda and Dustin's
child, K.H., was born in November 2011.
On June 29,
2012, the San Diego County Health and Human Services Agency (the Agency)
petitioned on behalf of three-year-old Dayton under Welfare and Institutions
Code section 300, subdivision (b), alleging Dustin had taken Dayton from his
maternal stepgrandmother without permission, drove away with Dayton in a car
without proper safety restraints, was found to be in possession of
methamphetamine, was arrested and pleaded guilty to child endangerment. A criminal protective order was entered barring
contact between Dustin and Dayton.
Protective orders in effect at the time of the incident had prohibited
Dustin from having contact with Amanda because of domestic violence, but Dustin
and Amanda had maintained contact, including living together at times. The court ordered Dayton detained in relative
care. Amanda's whereabouts remained
unknown during the dependency case.
At the
court found the allegations of the petition to be true. The court found Dustin and William both were
Dayton's presumed fathers under section 7611, subdivision (d), and an
evidentiary hearing was necessary to weigh their competing presumptions. The court denied Dustin's request for a paternity
test, finding the results of the test would not necessarily rebut William's
presumption under section 7611, subdivision (d) that he is the presumed father.
At the
evidentiary hearing on paternity on August 17, Dustin testified he and Amanda
were living together when Dayton was conceived, but when Amanda was a few
months pregnant she moved to live with William.
She did not inform Dustin when Dayton was born in 2008, but he saw him
at the hospital and, a few weeks later, Amanda and Dayton began living with
him. In 2009, Dustin and Amanda had a
domestic violence incident. Amanda and
Dayton then lived with William, but after a few months returned to live with
Dustin. Amanda later left again, then
returned, but left again and kept Dayton from him. Dustin said he had petitioned for custody in
October 2008, Amanda agreed for Dayton to have his last name and he was granted
50 percent custody. He and Amanda
married in late 2009. Dustin testified
that during the times Amanda and Dayton lived with him, he paid their expenses
and treated Dayton as his son.
Dustin's
mother testified Dustin had obtained 50 percent custody of Dayton, Dayton had
spent significant time with Dustin and she considered Dayton to be her
grandson. It was stipulated that if
William's mother were to testify, she would say she also considered Dayton to
be her grandson and a part of her family.
William
testified he and Amanda had been in a relationship for several years, she had
lived with him and he had supported her for most of her pregnancy with
Dayton. He said he was at the hospital
for Dayton's birth, and then Amanda and Dayton lived with him for 10 to 11
months, and he cared for Dayton and provided for him. He testified Amanda's behavior then became
erratic and she sometimes left with Dayton.
When Dayton was returned to him at times, he was in poor condition and
behaved as if his life had had no structure.
William said that in September 2010, Amanda gave him a letter of
temporary guardianship allowing him to make educational and medical decisions
for Dayton. William said he gave Dayton
structure, took him to activities and provided medical care. He said he had attempted to establish
paternity in family court, but had not completed the process.
The
maternal stepgrandmother testified Dayton had lived with Amanda and William. She said William cared for Dayton, and in
2010 Amanda provided him with documentation so he could enroll Dayton in
preschool. She said Dayton called
William daddy. She said she believed
Dayton had lived with Dustin only when Amanda was also in the home. She had investigated attaining guardianship
of Dayton to protect him from Amanda's lifestyle and give him stability. She had no concerns about William's ability
to parent Dayton.
After
considering the evidence and argument by counsel, the court found William was
Dayton's presumed father and entered a judgment of paternity. It struck the finding that Dustin was his
presumed father. It found William's
testimony was more credible than Dustin's testimony. It determined the weight of the evidence concerning
the presumption of section 7611, subdivision (d) was in William's favor, that
each man had received Dayton into his home and held him out as his own, but
William had provided a higher quality of care and structure, while Dustin had
used drugs and there had been referrals for child abuse and neglect while he
was caring for Dayton.
At the
disposition hearing, the court denied Dustin's renewed request for paternity
testing. It declared Dayton a dependent
child of the court, removed him from Amanda's custody, ordered him placed with
William, terminated Dustin's visitation and terminated jurisdiction.
DISCUSSION
I
Dustin
contends the court erred by not ordering a paternity test. He argues the results of testing might have
strengthened his position if it had shown he is Dayton's biological
father. He also asserts there is a
compelling state interest to establish paternity for all children. He maintains that under section 7551 a party
to a paternity action has the right to demand paternity testing if it would not
delay the proceedings.
Section
7551 states in part:
"In a civil action or proceeding in which paternity
is a relevant fact, the court may upon its own initiative or upon suggestion
made by or on behalf of any person who is involved, and shall upon motion of
any party to the action or proceeding made at a time so as not to delay the
proceedings unduly, order the mother,
child, and alleged father to submit to genetic tests."
The court
has discretion to evaluate claims of paternity and to determine that a man may
be a presumed father even if he is not the biological father. (In re
Nicholas H. (2002) 28 Cal.4th 56, 59.)
"[B]iological paternity by a competing presumptive father does not
necessarily defeat a nonbiological father's presumption of
paternity." (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1118.) The court may find that a presumed father who
is not the biological father has a stronger relationship with the child than
the biological father and thus the presumption that he is the presumed father
may prevail. (See Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116-1117.)
Dustin
first requested paternity testing on July 31, 2012. Paternity testing would have unnecessarily
delayed the proceedings and the court explained it did not believe it was
justified or necessary. The court
reasonably found paternity testing would not be particularly useful in
determining whether Dustin's or William's presumption under section 7611,
subdivision (d) should prevail. Instead,
the court was able to determine from the testimony at the evidentiary hearing
that the presumption under section 7611, subdivision (d) that William is
Dayton's presumed father held greater weight than the presumption favoring
Dustin. The court reasonably determined
that finding Dustin is the biological father would not have rebutted the
presumption that William is the presumed father. The court did not err by denying Dustin's
request for paternity testing.
II
Dustin
asserts the court misinterpreted the stipulation he and Amanda signed and a
judicial officer approved. He argues he
promptly acted to establish paternity when he learned of Dayton's birth; Amanda
agreed Dayton would bear his last name and she would place his name on the
birth certificate; and a court approved the resolution of the paternity
action. He argues Amanda's agreeing to
place his name on the birth certificate should be viewed as a judgment of
paternity.
Assuming
without deciding that Dustin has preserved this issue for appeal, we conclude
he has not shown the stipulation he entered into with Amanda should be given
the status of a voluntary declaration of paternity or a judgment of
paternity. A voluntary declaration of
paternity has numerous statutory requirements.
It must be executed on a particular form and contain the parties'
signatures and the name and birth date of the child. The mother must signify she has read and
understands the written materials in the documents, including notice
requirements and the father's constitutional rights associated with a paternity
declaration. In addition, the parents
must be informed that by signing the declaration the father is voluntarily
waiving his constitutional rights. The parents
must be provided the required information orally as well as in writing. (§§ 7572 & 7574.) Also, the mother must signify that the man
signing the voluntary declaration of paternity is the only possible father and
she consents to the establishment of paternity.
The father also must signify that he has read the written materials and
understands he is waiving his rights and that he is the biological father and
consents to the establishment of paternity.
Further, a witness must sign that he or she has witnessed the mother and
father sign the voluntary declaration of paternity. (§ 7574.)
To establish its validity, the voluntary declaration of paternity must
be filed with the Department of Child Support Services. (§ 7573.)
The
stipulation to which Dustin and Amanda agreed does not contain any of these
requirements. It was merely a two
sentence agreement to add Dustin's name to the birth certificate. Amanda never followed through to add Dustin's
name, and Dustin did not seek enforcement of what she had agreed to do. Also, Amanda could not truthfully say Dustin
was Dayton's only possible father as required by section 7574.
In the same
way, the stipulation is not the same as a judgment of paternity. A judgment of paternity determines the
existence or nonexistence of a parent-child relationship and is determinative
for all purposes except for actions under Penal Code section 270. (§ 7636.) Here, the judicial officer merely adopted the
stipulation as an order and made no findings as to paternity or the
parent-child relationship. The
stipulation between Dustin and Amanda was only an agreement concerning Dustin's
name on the birth certificate, which Dustin did not seek to enforce. It does not qualify as a voluntary
declaration of paternity or a judgment of paternity.
III
Dustin
claims he also is a presumed father under section 7611, subdivision (c). He argues because he married Amanda after
Dayton's birth, the fact that he agreed to have his name on the birth
certificate is critical to deciding that he, rather than William, is the
presumed father.
Section
7611, subdivision (c) states in part that a man is a presumed father when
"[a]fter the child's birth, he and the child's natural mother have
married . . . and either of the following is true: (1) With his consent, he is named as the
child's father on the birth certificate. . . ."
However,
Dustin's name does not appear on Dayton's birth certificate. Moreover, even if he were considered a
presumed father under section 7611, subdivision (c), the court would
nonetheless be required to weigh whether Dustin's or William's claims of being
the presumed father carried greater weight.
(§ 7612, subd. (b).) A
finding that Dustin is a presumed father under section 7611, subdivision (c)
would not mean that his claim would automatically prevail.
IV
Dustin
maintains because he and not William took significant legal steps to protect
his status as Dayton's presumed father, his claim is automatically superior to
William's. This argument is without
merit. William testified he also had
gone to court to attempt to establish paternity. Moreover, the fact that Dustin had made
efforts to establish paternity is only one of the factors the court was
required to consider when it weighed Dustin's and William's competing claims to
being Dayton's presumed father.
If more
than one person qualifies as a presumed father under the criteria of section
7611, section 7612, subdivision (b)
directs the court to weigh the conflicting presumptions. " 'If two
or more presumptions arise under Section 7611 which conflict with each other,
the presumption which on the facts is founded on the weightier considerations
of policy and logic controls.' " (In
re Jesusa V. (2004) 32
Cal.4th 588, 603.) A court's
determination, after it has weighed conflicting presumptions that arise under
section 7611, is reviewed under an abuse of discretion standard. (
court . . . should not be disturbed on appeal unless an abuse of discretion is clearly established." (In re Stephanie
M. (1994) 7 Cal.4th 295, 318.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason.' " (Id. at pp. 318-319.)
The
evidence showed William had maintained a stable home for Dayton in contrast to
the unstable life Dayton led when he was in the care of Amanda and Dustin. William cared for Dayton, provided him with
necessities of life, played with him and gave him opportunities to be involved
in activities. He supported Amanda when
she was pregnant with Dayton and purchased supplies in anticipation of his
birth. He continued to care for Dayton
even during times when Amanda was not in the home. Dayton called him his "daddy" and
wanted to be with him. In 2010, Amanda
gave William a letter of temporary guardianship so he could make medical and
educational decisions for Dayton in her absence.
Although
Dustin also took Dayton into his home and held him out to be his son, he did
not provide stability and structure.
Dustin's relationship with Amanda included domestic violence,
restraining orders and allegations of drug use.
There was evidence Dayton stayed with Dustin only when Amanda was also
there. If she left, she took Dayton with
her. Dayton appeared to be neglected
when in Amanda and Dustin's care, and when he was returned to William after
spending time with them, he was ill and had unusual behaviors. Also, the Agency became involved when Dustin
took him out of the maternal stepgrandmother's care without permission.
We hold
that when we consider all of the evidence together, we conclude the court did
not abuse its discretion by determining the presumption of section 7611,
subdivision (d) that William is Dayton's presumed father weighed more heavily
than the presumption in favor of Dustin.
DISPOSITION
The orders
are affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
name="_ftn1" title="">[1] Statutory references are to the Family Code unless otherwise
specified.
