In re Jewel M.
Filed 1/23/13 In re Jewel M. CA2/6
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
In the Matter of JEWEL M. et al., Persons Coming Under the
Juvenile Court Law.
2d
Juv. No. B241488
(Super.
Ct. No. JV50750)
(San
Luis Obispo County)
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
ROBERT G.,
Defendant and Appellant.
Robert G., the alleged
father of Jewel M., J. G., and Jonah G.,
appeals from a juvenile court
order denying him presumed father status and bypassing services. (Fam. Code, § 7611, subd. (d); Welf.
& Inst. Code, § 361.5, subd. (b)(6).)
to show that he received the children into his home and openly and publicly
acknowledged paternity. (In re
Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)
Procedural History
On March 28, 2011,
Obispo County Department of Social Services (DSS) filed a petition for
failure to protect Jewel, J., and Jonah (§ 300, subd. (b)), sexual abuse (§
300, subd. (d)), and abuse of a sibling (300, subd. (j)). The petition was filed after appellant was
arrested for sexually molesting Jewel and facing a 10 to 15 year state prison
sentence. Although the children's mother
believed appellant was the biological father, appellant's name was not on the
children's birth certificates and he was absent much of the time due to
At the April 12, 2012 hearing on the
petition, the trial court found that appellant was the alleged father of the
children. Appellant did not contest the
children's placement and waived services and future court appearances.
At the May 17, 2012 jurisdiction/disposition
hearing, appellant filed a JV-505 Statement Regarding Parentage for presumed
father status. (Fam. Code, § 7611, subd.
(d).) The trial court denied the
request because appellant's name was not on the children's birth certificates,
there was no declaration of paternity, there was no paternity judgment or
biological testing to establish parentage, and appellant was married to another
woman when the children were born. The
trial court found that granting appellant services would be contrary to the
children's best interests.
Presumed Father Status
Appellant argues
that the order denying him preferred father status is contrary to Family Code
section 7611, subdivision (d).
name="_ftnref2" title="">[2] On appeal, "we review the facts most
favorably to the judgment, drawing all reasonable inferences and resolving all
conflicts in favor of the order.
[Citation.]. " (In re
Spencer W., supra, 48
Cal.App.4th at p. 1650.)
In dependency
proceedings, fathers are divided into four categories: de facto fathers (a man
who has assumed the role of father), alleged fathers, natural [i.e.,
biological] fathers, and presumed fathers.
(In re Jerry P. (2002) 95 Cal.App.4th 793. 804.) The "term "alleged father"
refers to "[a] man who may be the father of a child, but whose biological
paternity has not been established, or in the alternative, has not achieved
presumed father status. . . .
[Citation.]" (In re
Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)
To establish presumed
father status, appellant bears the burden of proving more than just some family
relationship. (See e.g., In re
Spencer W., supra, 48
Cal.App.4th at pp. 1654-1655 & fn. 5.)
Appellant is an alleged father because he did not actively and
consistently hold himself out as the children's father, is not listed on the
children's birth certificates, has never signed a declaration of paternity or
had a judgment of paternity entered against him, and did not request or submit
to paternity testing. Appellant was
married to another woman when the children were born and told the children's mother
and others that Jewel is not his child.
Appellant was also incarcerated when J. and Jonah were born. When not in prison or jail, appellant stayed
with the family on and off, drank and used drugs, committed acts of domestic
violence, and jeopardized mother's Section 8 housing because he was not
supposed to be living there.
It is uncontroverted
that appellant physically and verbally abused the children, was convicted of
physically abusing Jewel in 2011, and sexually molested Jewel on various occasions. "[T]he current allegations of
molestation were found to be true by clear and convincing evidence when the
dependency petition was sustained, and are not challenged on appeal. [Appellant's] conduct was antithetical to a
parent's role and was a blatant violation of parental responsibilities. It more than counterbalanced the factors
favoring [appellant]s presumed father status. . . . 'In dependency proceedings . . . the purpose
of [Family Code] section 7611 . . . is to determine whether the alleged father
has demonstrated a sufficient commitment to his parental responsibilities to be
afforded rights not afforded fathers - the rights to reunification services and
custody of the child.' [Citation.] If an
individual can qualify for presumed status based on his good deeds consistent
with parental responsibilities, it follows that under certain circumstances he
can be disqualified by repugnant conduct that is detrimental to the child. [Citations.]" (In re T.R. (2005) 132 Cal.App.4th
1202, 1211-1212.)
Reunification Services
Appellant's assertion
that the trial court erred in not granting services is without merit. A presumed father is entitled to
reunification services, but not an alleged father or biological father. (In re Paul H. (2003) 111 Cal.App.4th
753, 760; In re Jerry P., supra, 95
Cal.App.4th at p. 801.) When the
juvenile court orders that the children remain in the custody of a parent
subject to court supervision, the court may order services solely for the
custodial parent. (§ 361.2, subd. (b)(3).)
Had the trial court granted appellant presumed father status,
appellant's sexual and physical abuse of the children would have warranted an
order bypassing services. (§ 361.5,
subd. (b)(6).)
Appellant waived
services at the first hearing on the petition, was incarcerated and awaiting
trial on sexual molestation charges, and was subject to a criminal court
no-contact order. We reject the argument
that appellant can do an end run around the no-contact order based on the
theory that he enjoys presumed father status.
Paternity presumptions are driven not by biological paternity, but by
the state's interest in the welfare of the child and the integrity of the
family. (In re T.R., supra, 132 Cal.App.4th at p.
1209.)
The judgment (order
denying presumed father status) is affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Linda D. Hurst, Judge
Superior Court County of San Luis
Obispo
______________________________
Joseph D. Mackenzie,
under appointment by the Court of Appeal, for Appellant.
Rita L. Neal, County
Counsel, County of San Luis Obispo, and Leslie H. Kraut, Deputy County Counsel.
for Respondent.
name="_ftn1" title="">[1] All statutory references are to the Welfare
& Institutions Code unless otherwise stated.
name="_ftn2" title="">[2] Family Code section 7611 provides in pertinent
part: "A man is presumed to be the
natural father of a child if . . . [¶] .
. . . . [¶] (d) He
receives the child into his home and openly holds out the child as his natural
child."
