In re Gabrielle B.
Filed 3/11/13 In re Gabrielle B. 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 GABRIELLE B. et al.,
Persons Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.G.,
Defendant and Appellant.
D062837
(Super. Ct.
No. J518444A-C)
APPEAL from
a judgment of the Superior Court
of
County, David B. Oberholtzer, Judge. Affirmed.
A.G.
appeals a judgment following a dispositional
hearing held under Welfare and Institutions Code section 361, subdivision
(c).
conduct an adequate inquiry into her husband's status as the minor child's
presumed father under Family Code section 7611, subdivision (d) and erred when
it did not determine his paternity status.
She argues the error is not harmless because had the juvenile court
determined parentage status, her husband, Jeremiah G., would have qualified as
presumed father and received court-ordered family reunification services. A.G. asserts Jeremiah's ineligibility for
services as a stepparent will impede or prevent family reunification.
We conclude that the juvenile
court conducted an adequate parentage inquiry under section 316.2. The information provided to the court at the
establish that Jeremiah was an alleged father of the minor child. Jeremiah had notice of the proceedings and an
opportunity to appear and assert his parentage status. Jeremiah did not seek to change his parentage
status from alleged father to presumed father.
The juvenile court is not required to determine paternity status under
Family Code section 7611 where the alleged father does not identify himself as
the dependent child's presumed father and seek such a determination. Accordingly, we affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
A.G. is the
mother of four children, Gabrielle B., Elizabeth B., Ashton B.,
and Greyson G., ages 16, 15, nine and eight years, respectively. A.G. is married to Jeremiah G., who is
Greyson's father. Gabrielle and
Elizabeth's father is James B. Ashton's
alleged biological father was not involved in his life. Ashton had lived with Jeremiah since he was a
baby. He believed that Jeremiah was his
father.
On June 21, 2012, the
Agency (Agency) detained Gabrielle, Elizabeth and Ashton (the children) in
protective custody.
title="">[3] The Agency alleged the children had emotional
disorders that were caused by their stepfather's abusive conduct and their
mother's inability to structure a safe home environment. The family had a history of child welfare
referrals. The children were afraid of
Jeremiah. They said he pushed them down
stairs, hit, slapped and spanked them, swore and screamed at them and threw
objects at them. Ashton said these
incidents occurred "[p]retty much every day." He described an incident in which Jeremiah
held him by his neck
against a wall, choking him.
A.G. and
Jeremiah acknowledged that Jeremiah had an anger problem. A.G. said Jeremiah was rough with the
children but would not hurt them. They
also claimed his actions were strict disciplinary techniques used when
necessary to control Ashton's behaviors.
Ashton was
withdrawn and depressed, displayed temper tantrums and refused to follow
directions. After he was detained with
his grandmother, Ashton's behaviors worsened.
He was hospitalized after he threw items, kicked his aunt in the
stomach, scratched his uncle and pinned his grandmother against the wall and
kicked her.
The
22. Jeremiah was present in the
courtroom. A.G. filed a parentage
inquiry naming Chad B. as Ashton's father, stating they had a relationship in
2002.
never supported Ashton or had him in his home.
A.G. married Jeremiah in December 2004.
At the close of the detention hearing, fifteen-year-old Gabrielle said
she considered Jeremiah to be her father and asked the court to provide
reunification services to him. She
expressed concerns about Ashton because he considered Jeremiah to be his father
and was not aware that he had a different biological father. Minors' counsel asked the juvenile court to
provide services to Jeremiah, if he decided to enter the case.
The
juvenile court said if it determined that Jeremiah was the children's presumed
father, it would order the Agency to provide family reunification services to
him. The juvenile court asked whether
there was a category of "alleged presumed father." County counsel responded there was no such
category.
Jeremiah
was also present at a hearing on July
10, 2012. A.G. said she and
Jeremiah were not going to divorce or separate.
Jeremiah was planning to participate in anger management services and
parenting classes. The juvenile court
said Jeremiah's conduct was "a big part of this case" and wanted him
to undergo a court-ordered psychological evaluation. The Agency objected, stating that alleged
fathers and stepfathers of dependent children are not entitled to reunification
services. The juvenile court questioned
the value of opening a dependency case if it could not order services for
Jeremiah.
Minors'
counsel advised the juvenile court that after Gabrielle had asked whether
Jeremiah could obtain presumed father status, Jeremiah consulted with counsel
and chose not to enter the case. Minors'
counsel said she shared the court's concern about the prospects of family
reunification if Jeremiah did not receive services; however, Jeremiah chose not
to seek presumed father status. Jeremiah
did not ask to be heard at that hearing.
He did not subsequently seek to change his parentage status.
At the
jurisdictional/dispositional hearing,
after sustaining the dependency petitions, the juvenile found that Ashton had
severe emotional problems and placed him in a group home. A.G.'s counsel asked the juvenile court to
provide services to Jeremiah, stating "if we don't offer the stepfather
any services, we're effectively cutting him out of the family. And he has a biological child in the
home." The court endorsed counsel's
remarks and added, "We're not doing this family any good if we don't help
the stepfather." The Agency said
there was no statutory authority to order services for Jeremiah. However, it would provide referrals to
services Jeremiah could obtain on his own, and include Jeremiah in conjoint
therapy with Ashton and A.G., if recommended by their therapists.
DISCUSSION
A.G. argues
the parentage inquiry under section 316.2 was inadequate. She contends the juvenile court erred when it
accepted county counsel's representation there was no such category as
"alleged presumed father."
A.G. maintains the juvenile court has a sua sponte responsibility to
determine an alleged father's paternity status.
She argues the errors are not harmless because had the juvenile court
proceeded under the correct legal standards, it would likely have determined
that Jeremiah was Ashton's presumed father and ordered the Agency to provide
family reunification services to him.
The Agency
contends A.G. lacks standing to challenge the adequacy of the juvenile court's
inquiry into Jeremiah's paternity status.
It also argues she forfeited her right to raise the issue on
appeal. On the merits, the Agency
asserts the juvenile court conducted an adequate inquiry under section 316.2
and the court was not required to determine whether Jeremiah was Ashton's
presumed father because he chose not to seek presumed father status.
A
A.G. Has Forfeited the Issues on Appeal
Assuming
without deciding A.G. has standing to raise the issues of adequate parentage
inquiry and the juvenile court's sua sponte responsibility to determine
parentage status, we conclude that A.G. has forfeited the issues by failing to
raise them in the juvenile court.
Forfeiture, also referred to as " 'waiver,' " applies in
juvenile dependency litigation and is intended to prevent a party from standing
by silently until the conclusion of the proceedings. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 222.)
A party may not assert theories on appeal that were not raised in the
trial court. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478,
1489.)
A.G. was
present at the June 22 detention hearing, the hearing on July 10 and the
September 14 contested jurisdiction/disposition hearing. The question of Jeremiah's status as the
children's presumed father was raised and discussed at the hearings on June 22
and July 10. Jeremiah's eligibility for
services was discussed at all three hearings.
A.G. failed to bring to the juvenile court's attention her assertions the
parentage inquiry was inadequate and that as a matter of law, the court was
required to determine Jeremiah's status as Ashton's presumed father and provide
reunification services to him. Had she
done so, the court could have considered her claims. Even if the doctrine of forfeiture did not
apply, we would not be persuaded by A.G.'s argument.
B
The Parentage
Inquiry Was Adequate
Section 316.2 directs the
juvenile court to determine parentage as soon as possible. At the detention hearing, or as soon
thereafter as practicable, the juvenile court is required to inquire of the
mother and any other appropriate person as to the identity and address of all
presumed or alleged fathers, including whether any man qualifies as a presumed
father under section 7611, or any other provision, of the Family Code. (§ 316.2, subd. (a); Cal. Rules
of Court, rule
5.635(b).)
father does not relieve the court of its duty of inquiry, which should include
the question whether any man otherwise qualifies as a presumed father under
applicable Family Code provisions.
(§ 316.2, subd. (a).)
A
father's status is significant in dependency cases because it determines the
extent to which the father may participate in the proceedings and the rights to
which he is entitled. (In re
Christopher M. (2003) 113 Cal.App.4th 155, 159.) Dependency law recognizes three types of
fathers—presumed, alleged and biological.
(In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15 (Zacharia D.).)
criteria listed in Family Code section 7611.
(Zacharia D., at
p. 449.) A biological father is
one who has established biological paternity but has not achieved presumed
father status. (Id. at p. 449, fn. 15.) A man who may be the biological father of a child, but
whose biological paternity has not been established, is an alleged father. Similarly, a man who is not necessarily the
child's biological father but who may achieve presumed father status under
Family Code section 7611 is an alleged father.
(Zacharia D.,
at p. 449, fn. 15.)
Only a
presumed father is entitled to family reunification services and custody of the
child. (§ 361.5, subd. (a);
1202, 1209.) The juvenile court may
offer or provide court-ordered reunification services to the child's biological
father. (§ 361.5, subd. (a).) An alleged father is entitled only to notice,
an opportunity to appear and assert a position and attempt to change his
paternity status in accordance with section 316.2. (In re
Kobe A. (2007) 146 Cal.App.4th 1113, 1120 (Kobe A.).)
Whether
the juvenile court conducted an adequate inquiry into Jeremiah's paternity
status does not involve an issue of disputed fact. When facts are not in dispute, the legal
significance of those facts is a question of law. (Ghirardo
v. Antoniolo (1996) 14 Cal.4th 39, 51.)
We
agree with A.G.'s contention the Agency incorrectly asserted there was no
category of "alleged presumed father." A man who is not the child's biological
father may attain status as the child's presumed father. (Zacharia
D., supra, 6 Cal.4th at p. 449,
fn. 15; see, e.g., Fam. Code, § 7611, subd. (d) [a man is presumed to be
the natural father of a child if he receives the child into his home and openly
holds out the child as his own].) The
evidence and information presented at the detention hearing indicated Jeremiah
may have qualified as Ashton's presumed father under Family Code section 7611,
subdivision (d). Thus he was an alleged father.
On
this record, we are not persuaded that any misunderstanding about Jeremiah's
status as an alleged father was material.
The purpose of
a parentage inquiry under section 316.2 is to identify all presumed and alleged
fathers, and provide them with notice and an opportunity to appear and assert
paternity. (§ 316.2;
discussed in his presence in court on more than one occasion, and he did not
seek clarification or ask to be heard.
The record shows that Jeremiah received notice of the proceedings and
understood he had been classified as an alleged father. He also knew that as an alleged father, he
was not entitled to reunification services but had the right to appear in Ashton's
dependency proceedings and change his parentage status. The facts are clear and undisputed. Jeremiah, the juvenile court and the parties
understood that Jeremiah was eligible to come forward and assert his status as
Ashton's presumed father, but did not do so.
Although informal,
name="_ftnref7" title="">[7]
the parentage inquiry was adequate.
C
Whether an Alleged Father Is the Child's Presumed Father
A.G.
argues the juvenile court erred when it did not determine whether Jeremiah was
Ashton's presumed father under Family Code section 7611, subdivision (d). She contends the error is egregious because
under the correct legal standards, the court would likely have
determined that Jeremiah was Ashton's presumed father
and he would have been entitled to court-ordered family reunification services.
If a
person appears at a dependency hearing and requests a judgment of parentage,
the court must determine: (1) whether
that person is the biological parent of the child; and (2) whether that person
is the presumed parent of the child, if
that finding is requested. (Rule
5.635(h); § 316.2, subd. (d).) A
man seeking status as the child's presumed father under Family Code section
7611, subdivision (d), has the burden of establishing by a preponderance of the
evidence he received the child into his home and held the child out as his
own. (In re Spencer W. (1996) 48
Cal.App.4th 1647, 1652-1653 (Spencer W.).)
The issue
whether the juvenile court has a sua sponte duty to determine an alleged
father's status as presumed father under Family Code section 7611, subdivision
(d) is an issue of statutory interpretation, which we review de novo. (People
ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
A.G.'s
argument rests on the erroneous assumption an alleged father is entitled as a
matter of law to the benefit of a presumption of parentage under Family Code
section 7611, subdivision (d) without his coming forward and seeking presumed
father status. (Spencer W., supra, 48
Cal.App.4th at pp. 1652-1653.) To
the contrary, the juvenile court is required to determine whether an alleged father is
the presumed parent of the child only when the alleged father appears at a
hearing and requests a judgment of parentage, or the child, the child's mother
or agency files a parentage action.
(§ 316.2, subds. (d) & (e);
rule 5.635(h).)
If
Jeremiah had wanted to change his paternity status, it was his burden to
request such a determination and show that he had received Ashton into his home
and openly and publicly acknowledged paternity.
(Spencer W.,
Fam. Code, § 7611, subd. (d).) The
record shows that Jeremiah did not take any action to establish his status as
Ashton's presumed father, and no other party filed a parentage action under
Family Code section 7630. Thus the juvenile court was not
required sua sponte to determine whether Jeremiah was Ashton's presumed father.
DISPOSITION
The
judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] All further statutory references are to
the Welfare and Institutions Code unless otherwise specified.
name="_ftn2" title="">[2] This appeal concerns only Ashton.
