In re J.H.
Filed 1/14/14 In re J.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Sacramento)
----
In re
J.H., a Person Coming Under the Juvenile Court Law.
SACRAMENTO COUNTY
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and
Respondent,
v.
D.H.,
Defendant and
Appellant;
J.H.,
Respondent.
C072201
(Super. Ct. No.
JD232495)
Appellant
D.H. appeals from the juvenile court’s orders denying him presumed father
status and dismissing him from the dependency case involving the minor
J.H. (Code Civ. Proc., § 581d;
225 Cal.App.3d 1602, 1606.) He
contends
title="">[1] there is insufficient evidence to support the
pursuant to Family Code section 7611,
subdivision (d).
name="_ftnref2" title="">[2] We conclude appellant failed
to meet his burden of establishing presumed father status. Accordingly, the trial court did not abuse
its discretion in denying presumed father status and we affirm the
BACKGROUND
The
minor J.H. (born April 2012) and his mother tested positive for amphetamines at
his birth. Mother had no prenatal care
and admitted to living with a group who used drugs every day. She told the social worker appellant was not
the minor’s biological father, but was her live-in boyfriend. She also admitted to previously having her
parental rights terminated as to the minor’s half sibling.
In
June 2012, the Sacramento County Department of Health and Human Services (the
Department) filed a dependency petition (Welf. & Inst. Code, § 300)
alleging jurisdiction based on mother’s substance abuse problems, mother’s
failure to utilize services through informal supervision, appellant’s substance
abuse problems, and mother’s failure to reunify with the minor’s half
sibling. The petition and the detention
report referred to appellant as the minor’s father.
The
detention report related an April 18, 2012, interview
regarding the informal supervision plan between the emergency response social
worker, mother, and appellant. The
social worker told appellant that she was working only with mother; appellant
replied he and mother were a “package deal.â€
Mother was told a safety plan was necessary because she failed to
complete services in 2009. She agreed
not to be left alone with the minor and to allow the “paternal aunt†to
supervise him.
Appellant
said he met mother about six months ago, when she was living with several other
people. Mother moved in with him about
two months ago, and she did not use drugs while in his home. Appellant reported mother was getting
prenatal care from a Dr. Allen, and that he was paying for mother’s prenatal
pills and doctor visits.
Mother
and appellant were residing with the minor at the home of appellant’s sister,
K.H., who was the minor’s emergency care provider. On May 14, 2012,
K.H. reported mother had moved out of the home as part of the safety plan and
appellant was not home because he was helping mother move.
In
a May 16, 2012, meeting with the social worker, mother agreed to enter a
residential treatment program while appellant remained with the minor at his
sister’s home. Mother left the program
by May 21,
2012, and was living with appellant in the
home of appellant’s mother. Mother reported
the minor was in “good hands†with appellant’s sister. On May 25, 2012,
K.H. told a social worker she had not seen or heard from mother or
appellant. In a June 6, 2012, interview with the social worker, mother and appellant said the
substance abuse services were too challenging.
Appellant also admitted to regularly using marijuana.
Mother
told the social worker appellant was the minor’s father. Appellant and mother are not married, but
lived together before the minor was born.
According to mother, appellant was present at the minor’s birth, was
named as the father on a birth certificate, and signed a declaration of
paternity. Appellant made the same
representations as mother regarding paternity.
Mother
was married to another man, but they separated in December 2008. Her husband lived in Nebraska.
At
the June 26,
2012, detention hearing, the juvenile court
heard testimony from mother and appellant regarding the identity of the minor’s
father. Mother testified appellant
“signed a declaration under penalty of perjury [that] he’s the father, and he’s
on the birth certificate.†Appellant was
not the minor’s biological father, which mother knew when the declaration was
signed. Appellant testified to signing
the declaration when he knew he was not the biological father.
The
juvenile court stated the declaration could be vacated and void because it “can
only be signed by those folks who believe he’s the biological parent.†And, if appellant knew he was not the
biological father when he signed the declaration, then “I don’t believe he’s
the presumed father. I think that voids
the document.â€
Appellant’s
counsel replied: “[R]egardless of the
paternity declaration my client would be requesting presumed status in the
alternative of the paternity declaration.
He is holding out the child as his own and wishes to be the father for
all purposes. In speaking with him
before the hearing he said he wasn’t sure of everything he was signing, but he
wanted to be the father and is on the birth certificate.†The juvenile court asked for points and
authorities from both parties on whether appellant was entitled to presumed
father status pursuant to section 7611.
A
jurisdiction/disposition report was filed in July 2012. Mother’s husband told the social worker he
lived in Nebraska for the last two-and-one-half years, and had had no contact with
mother during this time. He was trying
to divorce mother, but was unsuccessful in serving her with the paperwork.
On
June 30, 2012, appellant was detained on a parole violation and outstanding
warrants for robbery, possession of narcotics paraphernalia, and possession of
narcotics. His release date was unknown,
with the next court hearing scheduled for July 19, 2012. Appellant has an extensive criminal record,
including a 1990 conviction for delivery of a substance falsely represented as
a controlled substance, a 1992 second degree burglary conviction, a 1998
conviction for possession of a firearm by a felon, a 2000 conviction for
corporal injury to a spouse or cohabitant, a 2002 conviction for bringing a
controlled substance into prison, 2008 convictions for possession of drug
paraphernalia and assault by means likely to produce great bodily injury, and a
2011 conviction for obstructing an officer.
As
of June 30,
2012, neither mother nor appellant had
contacted the Department regarding visitation.
Mother reportedly had called appellant’s sister to check on the
minor. The Department concluded
appellant remained an alleged father
Father
subsequently filed a memorandum of points and authorities supporting presumed
father status, while the minor and the Department filed memoranda in
opposition. On August 14, 2012, mother’s husband filed a declaration that he is not the minor’s
father and does not wish to participate in the dependency.
The
juvenile court held a pre-jurisdictional conference on paternity on September 10, 2012. Appellant’s counsel told
the juvenile court appellant, if called, would testify he was told by the
Department that as part of the safety plan, the minor would go to his sister’s
home rather than his home. Counsel told
the juvenile court appellant left his sister’s house because he thought it was
in the minor’s best interest to get mother into treatment. No witnesses were called. The juvenile court found appellant does not
warrant presumed father status because he “spent a very brief time with this
child,†and “his attempts to become a father are basically to assist the mother
because he has a relationship with the mother.â€
Continuing,
the juvenile court stated: “[T]hey both
signed a declaration under penalty of perjury at the birth of the child when
they knew he was not the biological father.
The mother was married to somebody else at the time. The child was released to [appellant]’s
sister because of the paternity declaration.â€
Mother and appellant left the minor after a “very brief period [of]
time†and continued to use controlled substances. After noting appellant’s extensive criminal
record, the juvenile court found appellant had not “done much to show that he
would be an appropriate father for this child,†and denied paternity for
appellant.
The
juvenile court then dismissed appellant from the dependency, sustained the
allegations related to mother, and denied reunification services for
mother.
DISCUSSION
Appellant
contends the juvenile court erred in denying him presumed father status
pursuant to section 7611, subdivision (d).
We disagree.
Section
7611, subdivision (d), provides for presumed parent status if the person
“receives the child into his home and openly holds out the child as his natural
child.â€
“A
man who claims entitlement to presumed father status has the burden of
establishing by a preponderance of the evidence the facts supporting his
entitlement. [Citation.] ‘Although more than one individual may
fulfill the statutory criteria that give rise to a presumption of paternity,
“there can be only one presumed father.†’
[Citation.]†(
139, 147.)
“[O]nly
a presumed father is entitled to custody or a reunification plan. [Citations.]
An alleged father is not entitled even to appointed counsel, except for
the purpose of establishing presumed fatherhood. [Citations.]
Indeed, it is generally said that an alleged father’s rights are limited
to ‘an opportunity to appear and assert a position and attempt to change his
paternity status . . . .’
[Citations.]†(
at p. 147.)
An
alleged father cannot satisfy section 7611, subdivision (d), by
“constructively†receiving a child into his home, but only by doing so
physically. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051; see
1 Cal.4th 816, 829-830.) However,
an alleged father’s failure to bring the child physically into his home may be
excusable under section 7611, subdivision (d), if he sought to do so but was
frustrated by forces beyond his control, such as the mother’s actions to prevent
it or the taking of custody over the child by a county department of social
services. (In re Andrew L. (2004) 122 Cal.App.4th 178, 191; see
pp. 849-850.)
Section
7611, subdivision (d), also requires an alleged father to “openly and publicly admit
paternity.†(Adoption of Michael H.,
supra, 10 Cal.4th at p. 1051.) An
alleged father does not hold out a child as his own when he is “unwilling to
proclaim paternity when there might have been some cost to him,†or he “show[s]
an indifference toward establishing or maintaining a parental relationshipâ€
with the child. (In re Spencer W.
(1996) 48 Cal.App.4th 1647, 1654.)
For
presumed father status, the alleged father must show he has “ ‘promptly come[]
forward and demonstrate[d] a full commitment to his parental responsibilities
-- emotional, financial, and otherwise . . . .’ [Citations.]
[And] ‘has done all that he could reasonably do under the circumstances’ to demonstrate his commitment to the
child. [Citations.]†(In re
Andrew L., supra, 122 Cal.App.4th at p. 191.)
Appellant
has failed to meet his burden of establishing presumed father status. Appellant did not receive the minor into his
home. Even assuming appellant could
satisfy this requirement by living with the minor at appellant’s sister’s house
(see S.Y. v. S.B. (2011)
201 Cal.App.4th 1023, 1033 [separated couple, living with the minor three
days a week and most weekends and holidays constitutes taking the child into
one’s home]), appellant spent no more than a few weeks with the minor. He moved out with mother when she went to
residential drug treatment. Once he
moved out, appellant never contacted the Department to arrange visits with the
minor.
There
is no credible evidence appellant held the minor out as his child. Appellant and mother testified they knew he
was not the biological father when he signed the birth certificate. After the minor’s birth certificate was
received in the record on appeal, we learned appellant did not sign the
certificate and he is not listed as the father.
Further, there is minimal evidence of appellant supporting the
minor. Appellant’s sole financial
commitment to the minor was his claim he paid for mother’s prenatal pills and
visits to the doctor. However, this
claim was at least partially contradicted by a statement from the Sutter
Hospital social worker that mother had no prenatal care.
During
the three weeks he lived with the minor, appellant told the juvenile court he
fed the minor, changed his diapers, and walked him around the house at night to
help him sleep. However, this brief
period of time spent with the minor is not sufficient to establish presumed
father status. (In re D.M. (2012) 210 Cal.App.4th 541, 554 [“where the child
is a newborn detained within days of his [or her] birth, a man with no
biological relationship to the child and no marital relationship with the
mother will be hard pressed to prove an existing familial tie to the
child. He may develop such a relationship
over time . . . .
But we doubt that such a relationship springs full-blown from the
wombâ€].)
Finally,
we reject appellant’s contention the juvenile court based its decision on
improper considerations, namely his criminal record and substance abuse. “No rule or decision is better or more firmly
established by authority, nor one resting upon a sounder basis of reason and
propriety, than that a ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason.†(Davey
v. Southern Pacific Co. (1897) 116 Cal. 325, 329.) This rule applies with equal force to
dependency cases. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.)
Appellant’s
contributions to the minor’s life were minimal at best. After living with the minor for the first three
weeks of his life, appellant left the minor to live with mother and did not
visit him again. As the juvenile court
correctly found, these actions may support an intent to maintain a relationship
with mother, but they are inconsistent with a relationship with a child that is
accorded presumed father status. It is
clear from this record appellant did not come forward and demonstrate a full
commitment to his parental responsibilities.
We conclude the juvenile court did not abuse its discretion in denying
appellant presumed father status.
DISPOSITION
The
juvenile court’s orders are affirmed.
HOCH , J.
We concur:
RAYE , P. J.
ROBIE , J.
name="_ftn1" title="">[1] In his opening brief,
appellant also challenged the juvenile court’s ruling on the voluntary
declaration of paternity. He abandoned
this contention after we took judicial notice of the minor’s birth certificate
showing appellant did not sign the certificate and was not listed as the
father.
name="_ftn2" title="">[2] Undesignated
statutory references are to the Family Code.
