P.
Filed
2/7/12 In re Devin P. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re DEVIN P., a Person Coming
Under the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Plaintiff and
Respondent,
v.
KRISTI R., et al.,
Defendants and
Respondents,
DONNIE M.,
Appellant.
F062778
(Super.
Ct. No. 516056)
APPEAL
from an order of the Superior Court of
County. Ann Q. Ameral, Judge.
Rebecca A.
Roberson for Appellant.
John P. Doering, County Counsel,
and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendants and
Respondents.
-ooOoo-
The juvenile court detained
eight-year-old Devin P. and his two younger half-siblings (collectively the
children) after the children’s mother, Kristi R. (mother), who had been
undergoing drug treatment, relapsed and became homeless. Devin had been living with his maternal
great-uncle Donnie M., who had cared for Devin since he was an infant but had
never obtained legal guardianship.
During dependency proceedings, the juvenile court denied Donnie’s motion
to be declared Devin’s presumed father or, in the alternative, his legal
guardian. Donnie appeals, contending the
juvenile court erred in denying the motion.
Finding no merit to his contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The children came to the attention
of the Stanislaus County Community
Services Agency (Agency) in April 2010, when the Agency received a referral
that mother and the youngest child tested positive for methamphetamine at
birth. It was reported that mother was
living at her Uncle Donnie’s place.
Donnie told the social worker that he had been taking care of Devin
since he was three months old and mother had signed a paper giving him
permission to care for Devin. When asked
if he had guardianship of Devin, Donnie responded that he didn’t know he had to
file for guardianship and he would do so the following day. Mother agreed to
which she received until January 2011, when the case was closed due to her
non-compliance. During this time, Devin
remained with Donnie, while the two younger children were informally placed
with a friend.
In February 2011,
homeless, had relapsed and wanted treatment.
Donnie had not filed for legal guardianship of Devin. He told a social worker, who called him on
March 2, that he had the paperwork but did not have the money to file for
guardianship as he was in between residences.
Donnie said he would file the paperwork right away, as he did not want
the Agency to be involved and possibly take Devin away from him. The following day, mother’s probation officer
informed the Agency that she was being violated on probation and could serve
jail time. A bench warrant was issued
for mother’s arrest after she failed to appear for a court hearing on March 7.
On the morning of March 9, two
social workers interviewed Devin at his school.
Devin said he lived with his uncle Donnie, but would visit mother and
spend time at her house, and his father was in prison. Later that morning, the social workers went
to Donnie’s address for a home visit.
Donnie came out of a small size shed that appeared to be a
dwelling. Donnie stated that Devin slept
in a trailer, not the shed, and he had purchased a motor home in which he
planned on living. Donnie had not filed
the guardianship paperwork. The social
workers took all three children into protective custody after mother filed a
protective custody warrant waiver. A
social worker later explained to Donnie that Devin was taken into protective
custody because there was no legal guardianship, and there were concerns about
them living in the shed and about Donnie’s criminal history.
On March 11, the Agency filed a
dependency petition alleging the children came within the provisions of Welfare
and Institutions Code section 300, subdivisions (b) and (g).
signed a paternity declaration at Devin’s birth and paid child support,
although he had not maintained an ongoing relationship with Devin. This was later confirmed by a parentage
inquiry, which revealed that Rex, whose name is on Devin’s birth certificate,
had been established as Devin’s parent by voluntary declaration within a month
of Devin’s birth. Mother claimed that
Billy E., who had been in prison most of Devin’s life, was Devin’s biological
father. Mother stated there were no
other possible fathers for Devin.
Donnie, who wanted Devin returned to his care, reported that he was the
only father Devin had known, as he had cared for Devin since birth, he
considered Devin his son, and he held him out to the community as his son. Donnie claimed he wanted Devin to call him
“Uncle Donnie†because Billy is Devin’s true biological father.
In a report prepared for the
jurisdictional and dispositional hearings, the social worker stated she would
not object to Donnie being named Devin’s presumed father under Family Code
section 7611, subdivision (d), due to the “father role†he had assumed with
Devin and their strong emotional connection.
The social worker, however, believed it would not be safe to place Devin
in Donnie’s care because Donnie did not have appropriate housing, the motor
home Donnie had planned on living in lacked basic necessities, Donnie tested
positive for marijuana and other drugs, and he appeared to have limited ability
to provide financially for Devin.
At the May 25 continued
jurisdiction and disposition hearing, Donnie’s attorney, who the court had
appointed at the detention hearing to represent him, stated that although
Donnie did not “meet the criteria of holding the child out as his natural
child,†his position was that he is Devin’s presumed father, and the cases
“seem[ed] to indicate†the court had discretion to find him the presumed
father. The juvenile court directed her
to file points and authorities prior to the next hearing, which the court set
for June 16. Rex’s attorney informed the
court she would be filing a formal motion for genetic testing and to set aside
the voluntary declaration of paternity.
On June 7, the Agency filed an
research into Donnie’s relationship with Devin.
The social worker obtained an October 21, 2010 application for benefits
on which Donnie listed his relationship to Devin as great-uncle, and learned
that Donnie had told the staff at Devin’s school that he was Devin’s
uncle. The social worker also noted that
during a prior court hearing at which Billy was present, Devin was very focused
on Billy and talked about him being his father.
Based on this, the social worker believed Devin considered Billy his
father.
At the June 16 continued
jurisdiction and disposition hearing, the court first addressed Rex’s motion
for genetic testing and to set aside the voluntary declaration of paternity,
taking the matter under submission after hearing argument of counsel. The court then addressed the issue of
Donnie’s status. In points and
authorities filed that day, Donnie’s attorney argued that Donnie should be
named Devin’s presumed father under Family Code section 7611, subdivision (d),
as Donnie took Devin into his home from birth and loved, nurtured and cared for
him his entire life. While the attorney
recognized that Donnie told Devin who his biological father was and did not
attempt to deceive Devin into believing he was Devin’s biological father, she
asserted he was entitled to presumed father status because he took Devin into
his home and treated him as if he were his son.
In the alternative, Donnie’s attorney argued that despite Donnie’s
failure to obtain legal guardianship of Devin, the juvenile court should
recognize Donnie as Devin’s guardian and provide him reunification services
under section 366.3, subdivision (b), as mother had given Donnie written
permission for full custody and control of Devin, Devin’s school recognized
Donnie as Devin’s guardian, and Donnie had been the only parental figure in
Devin’s life.
County Counsel orally argued the
Agency opposed Donnie being declared Devin’s presumed father, as Donnie held
himself out to be Devin’s uncle, not his father, and Devin considered Donnie to
be his uncle, and there was no case law applying these facts in favor of
paternity. County Counsel further argued
there was no basis to consider Donnie to be Devin’s legal guardian, as he never
applied for legal guardianship despite being advised to do so, and in order to
receive reunification services, he must be a legal guardian and not merely a
caretaker. County Counsel further noted
the Agency would continue to foster a relationship between Donnie and Devin. The children’s attorney also opposed Donnie’s
request for presumed father status.
Donnie’s attorney did not present
any testimony on the issue of paternity.
Instead, she argued that Donnie had been acting as Devin’s father and
Devin was extremely bonded to Donnie.
She further argued that Family Code section 7611, subdivision (d) does
not require that the child call the parent “dad,†and Devin’s “heart is with
Uncle Donnie,†which is where he knows his home is. Finally, she asserted that it would be “an
absolute travesty†for Donnie not to receive reunification services to get
Devin back into his home.
After County Counsel and the
children’s attorney reiterated their opposition to Donnie’s motion, the court
asked Donnie’s attorney if there was anything else she wanted to submit to the
court on this issue. Donnie’s attorney
responded: “No, Your Honor. I would submit on my argument today and in my
points and authorities.â€
The court immediately ruled on the
motion, explaining that while there was no doubt in its mind that Devin was
very important to Donnie, his attorney was “asking that the Court not follow
the letter of the law,†and according to the law, while Donnie might be a de
facto parent by providing day-to-day care for Devin, to elevate him to presumed
father status he had to hold himself out as Devin’s father, which he had not
done, as there was no testimony to that effect and he instead held himself out
as Devin’s uncle or great-uncle. Absent
an acknowledgment of paternity, Donnie could not be Devin’s presumed
father. The court further noted Rex had
filed a voluntarily declaration of paternity, which made him the presumed
father. The court recognized that
emotionally Donnie had been a father figure, but the court “has to follow the
law, and I simply, as difficult as it is, I cannot find that he is the presumed
father, and therefore presumed father status is denied to [Donnie].â€
The court advised Donnie of his
appellate rights. Donnie then spoke up
and said: “Do I get to say anything
here?†The court replied “No,†and
explained that while he could plead with the court, it was following the
law. Donnie responded that he understood
the court’s point. Donnie’s attorney
asked if the court was going to rule on the request to name him guardian. The court responded that it did not have any
way of naming him guardian since he had not obtained guardianship. Donnie’s attorney acknowledged there was no
legal guardianship. The court explained
that while he is a de facto parent, as a de facto parent he was not entitled to
reunification services. County Counsel
pointed out that she was not aware of any request for de facto parent
status. Donnie’s attorney stated that
while he might request de facto parent status in the future, she had not made
such a request. The court terminated
Donnie’s attorney’s appointment as counsel for further proceedings below, as he
was not a party to the proceedings. This
appeal followed.
DISCUSSION
Donnie
contends the juvenile court erred when it denied him presumed father
status. “In dependency cases, ‘fathers’
are divided into several categories, including natural and presumed. [Citation.]
A natural father is one who has been determined to be the child’s biological
father. [Citation.] ‘“Presumed fatherhood, for purposes of
dependency proceedings, denotes one who ‘promptly comes forward and
demonstrates a full commitment to . . . paternal responsibilities — emotional,
financial, and otherwise[.]Չۉ۪
[Citation.] ‘A natural father can
be a presumed father, but is not necessarily one; and a presumed father can be
a natural father, but is not necessarily one.’ [Citation.] A presumed father is entitled to
reunification services and custody of the child.†(In re
Jose C. (2010) 188 Cal.App.4th 147, 161–162, fn. omitted (
A man may
obtain presumed father status in a dependency case by meeting conditions
described in Family Code section 7611. (
Of those conditions, the one Donnie relies on in this case is where
“‘[a] man who received a child into his home and openly holds the child out as
his natural child is presumed to be the natural father of the child.’†(Ibid.;
Fam. Code, § 7611, subd. (d).) A man
seeking the benefit of the presumption has the burden of proving the
foundational facts of the presumption by a preponderance
of the evidence, i.e. that he received the child into his home and openly
and publicly acknowledged paternity. (
1647, 1653; see also In re A.A.
(2003) 114 Cal.App.4th 771, 782.)
Here,
Donnie has not offered any evidence to show that he established the second of
the two elements necessary for presumed father status, namely that he openly
and publicly acknowledged paternity. To
the contrary, his attorney admitted below that he did not have any such
evidence. Instead, he argues that he can
satisfy this element because he acted as the functional equivalent of Devin’s
father. While the evidence shows that he
did so, that alone does not satisfy the test for presumed father status. He also asserts that nothing in Family Code
section 7611, subdivision (d), requires a child to call the person a particular
name, such as dad or daddy, to satisfy the second element. Although that may be true, the statute still
requires that the person acknowledge paternity openly and publicly. There is simply no evidence here that Donnie
did that. Instead, he held himself out
as Devin’s uncle or great-uncle.
Other
courts have concluded that a relative raising a child cannot be deemed a
child’s presumed parent if the relative does not openly hold out the child as
the relative’s natural child. (
127, 139-141 [holding 12-year-old child’s grandmother, who had raised him from infancy,
did not qualify as child’s presumed mother where there was no evidence she
openly held herself out in her community as the child’s mother];
claim of presumed father status where grandfather did not hold himself out as
the father of the child he had raised for the first six years of the child’s
life].) As explained in
function of a parent at various points in a child’s life, including grandparents,
stepparents, foster parents, extended family members, and so on. Doing so does not make any of them a presumed
parent. That status is defined by
statute, and it includes openly holding out the child as one’s natural
child. (Fam. Code, § 7611, subd.
(d).)†(Jose C., supra, 188
Cal.App.4th at p. 162.)
Here, it is
undisputed that while Donnie had raised Devin and provided for him as a parent
would, he never held out Devin as his natural child. Accordingly, the juvenile court properly
denied him presumed father status.
Donnie
alternatively contends that the juvenile
court should have made him Devin’s guardian so he could be given
reunification services. While Donnie
cites case law to the effect that a guardian may be provided reunification
services in appropriate circumstances, such as In re Z.C. (2009) 178 Cal.App.4th 1271, he does not provide any
case or statutory authority for the proposition that the juvenile court could
name him Devin’s legal guardian at the jurisdictional hearing.
Under
section 361.5, subdivision (a), a juvenile court may provide reunification
services to a guardian when a child is removed from the guardian’s
custody. The “guardian†as used in
section 361.5, subdivision (a), however, specifically refers to a guardian
appointed under the Probate Code. (
235, 249-250.) In the present case, it
is undisputed that Donnie never obtained legal guardianship of Devin and there is
no evidence that an application for guardianship was pending at the time of the
hearing at issue. The juvenile court,
therefore, was not empowered to provide reunification services to Donnie since
he was not Devin’s Probate Code guardian.
Presentation of Evidence
Donnie
contends the juvenile court erred by refusing to allow him to present evidence
at the paternity hearing. In support,
Donnie cites his question to the court, raised after his attorney had submitted
on the motion and the court issued its ruling, as to whether he got “to say
anything here,†and the court’s answer of “No.â€
He also cites the court’s statement that it did not have “any way of
naming him as the guardian because there’s no indication that he obtained
guardianship.â€
A review of the record reveals that
Donnie was provided ample opportunity to present evidence in support of his
motion. His attorney did not seek to
provide witness testimony, instead relying on the points and authorities submitted
in support of the motion and her argument.
After all counsel had an opportunity to argue, the court again asked her
whether she had anything else to submit on the motion, and she responded
no. In response to the court’s denial of
the request to be named Devin’s guardian, Donnie’s attorney acknowledged there
was no legal guardianship.
Donnie’s contention on appeal that
witnesses would have testified that he held himself out as Devin’s natural
father is waived as he never requested to call witnesses on the paternity issue
at trial. Issues not raised in the trial
court are not cognizable on appeal. (
635, 641; In re Richard K. (1994) 25
Cal.App.4th 580, 589-590.)
DISPOSITION
The juvenile court’s order denying the motion for presumed father
status or, in the alternative, legal guardian of Devin is affirmed.
_____________________
Gomes, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Dawson, J.
further dates are to the year 2011, unless otherwise stated.
further statutory references are to the Welfare and Institutions Code, unless
otherwise stated.
