In re K.S.

Filed 5/21/08 In re K.S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Dabney Finch, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

Nicole Williams, under appointment by the Court of Appeal, for Minor.

1. Introduction

Tommie D. (Tommie) appeals, contending the dependency court erred by finding Derrick S. (Derrick), the biological father, was also the presumed father of K.S. and granting Derrick joint legal and sole physical custody of K.S. under Welfare and Institutions Code section 361.2.^[1] We affirm the dependency court.

2. Factual and Procedural Background

K.S. was born in April 2003. K.S. and three half-siblings were the subject of an original dependency petition filed in September 2006.^[2] A.B. is K.S.s mother. Tommie was identified as his alleged father. The petition alleged the parents had engaged in serious acts of domestic violence and neglected the children by placing them with inappropriate caregivers and not providing adequate food and shelter. Among other deficiencies were that the Murrieta residence lacked a refrigerator and milk was being stored in a bucket of ice. Additionally, mother had a previous history of reported neglect. The incident which precipitated the initial detention involved Tommie physically throwing mother outside the house and then beating her, all while she was holding their infant child. The mother sustained various injuries. Both parents identified Tommie as K.S.s biological father.

Subsequently, mother completed a paternity inquiry form identifying Derrick as K.S.s father and stating there was a 2006 order for child support. She also asserted that Derrick had abandoned her when she told him she was pregnant but Derricks name was on the birth certificate. She did not have any information regarding Derricks location. Tommie also executed a paternity inquiry form claiming he was K.S.s father and listed on the birth certificate.

At the detention hearing, the dependency court made a finding that Tommie was K.S.s presumed father.

In the jurisdiction/detention report and an addendum, the Riverside County Department of Public Social Services (Department) explained that Derrick was probably K.S.s biological father, with whom mother had a relationship for about three months. Mother met Tommie when K.S. was born and Tommie treated K.S. as his own child. Mother had a history of other referrals to family services in Los Angeles and Riverside. She also had a juvenile and criminal history. Tommie had some adult offenses. Tommie claimed he had graduated from Long Beach State and worked as an elementary school teacher and in construction. He regarded K.S. as his child. Derricks whereabouts were unknown. The Department recommended reunification services for mother and Tommie but not for Derrick. In January 2007, mother was pregnant with her fifth child.

As of January 16, 2007, the Department had located Derrick. When contacted by the social worker, Derrick explained that he had been trying to obtain a paternity test and to visit K.S. since his birth but mother had been unresponsive and uncooperative. Derrick supplied a written account of his efforts and provided copies of correspondence from mother to him. Derrick had begun visiting K.S. weekly, bringing his fiance and gifts for all the children. He had paid for a childcare provider to supervise his visits with K.S. and the other children. He had also offered to help the foster mother, the childrens maternal great-aunt, with the childcare costs. Derrick believed he might also be the father of Kr.D. and he expressed willingness to take all the children. He had a home and a stable job and had passed a background check. In an addendum dated February 2007, the Department recommended K.S. be placed with Derrick, conditioned upon test results showing Derrick to be the biological father.

At a hearing on February 22, 2007, mother, Tommie, and Derrick were all present. The court set a contested three-hour disposition hearing for April 25, 2007. The court ordered paternity testing for Derrick and Kr.D. and for the Department to investigate whether there was a judgment of paternity in the child support proceedings concerning K.S. Derrick also completed a paternity inquiry form, claiming paternity of K.S. and describing a child support order issued in August 2006 for $581 a month.

On March 7, 2007, the court granted an ex parte application placing K.S. with Derrick for an extended visit. The application was prompted by mothers hostile conduct toward the foster parent, her maternal aunt, who was no longer willing to keep the children. According to the genetic testing, Derrick is K.S.s father. The child support order against Derrick was based on a default judgment. The Department recommended Derrick have placement as the nonoffending parent who was willing and able to take care of his son.

As of March 2007, Tommie had moved from Murrieta to Los Angeles. Mother was purportedly living alone but there was evidence Tommie was still living with her. The social worker inspected the residence which was dirty, cluttered, and lacked a working refrigerator. A small dog occupied one bathroom with urine and feces covering the floor. The social worker described ongoing difficulties with the parents visitation between February and April 2007.

In an addendum filed in April 2007, the Department again recommended that K.S. be placed with Derrick and the dependency proceedings dismissed. Derrick is a high school graduate who attended one year of college. He worked as a driver for Greyhound Bus Company and Paramount Pictures. He has two older children, one in college, and four young children under six years of age with his fiance, with whom he had been involved for eight years and planned to marry shortly. Derrick had expressed his concerns about how mother prevented him from having contact with K.S. and about mothers relationship with Tommie. Tommie had bullied K.S. during their visits and he tried to bribe Derrick into giving up his rights to K.S.

The contested dispositional hearing for K.S., first scheduled for October 10, 2006, was finally conducted on Monday, April 30, 2007, after being continued from Wednesday, April 25. Tommie had hired private counsel, Vincent Davis, on the Saturday afternoon before the continued hearing date. Davis asked to continue the hearing for a week to 10 days to review the file and to subpoena witnesses. Counsel for Derrick objected on the grounds that he was seeking a judgment of paternity that would rebut the presumed father finding as to Tommie. The court denied the request for a continuance and denied Daviss request to substitute in as Tommies counsel because Davis had already indicated he was not ready to proceed. The court also denied Tommies Marsden^[3]motion. Tommie continued to be represented by his appointed counsel.

As the hearing went forward, the Department submitted on the department reports and requested that Derrick be granted custody of K.S. Derricks counsel requested the court to enter a judgment of paternity and find Derrick to be the presumed father. Minors counsel agreed. Tommies counsel asked the court to enter a judgment of paternity in his favor and to continue the finding that Tommie was the presumed father. The court entered a judgment of paternity in favor of Derrick and then found the previous presumed father finding was rebutted, and thus rescinded, by the judgment, making Derrick the presumed father of K.S. The court ordered K.S. to be placed with Derrick with him having sole physical custody, mother having visitation, and the parents sharing legal custody. The court further ordered the dependency terminated for K.S.

3. Denial of Continuance and New Counsel

Tommie first argues it was an egregious abuse of discretion for the trial court to deny his request for a short continuance of the disposition hearing to allow his newly-retained lawyer to prepare and to deny Tommies request to be represented by the new counsel even without a continuance. He argues he had a constitutional right to counsel of his own choice, that it was not prejudicial to K.S.s best interests to allow a continuance, and that the Department, and by extension Derrick, were estopped from objecting to a continuance.

Under section 352, subdivision (b), a dispositional hearing must be conducted within 60 days of a minor being detained. The court may only grant a continuance of the dispositional hearing beyond the 60-day limit based on exceptional circumstances. Furthermore, [i]n no event shall the court grant continuances that would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319. ( 352, subd. (b); D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 511.)

The detention hearing was September 14, 2006. The jurisdictional/dispositional hearing was continued several times, from October 10, 2006, to November 7, 2006, to January 17, 2007, the date when Derrick was first identified as the biological father. The court made jurisdictional findings on January 17 and then continued the dispositional hearing for K.S. to February 22. The contested dispositional hearing was set for April 25, continued to April 30. The six-month date for the dispositional hearing should have been set no later than March 14, 2007.

On April 30, the court had no discretion to grant a further continuance: The overarching goal of the juvenile dependency system is to promote the best interests of children within the system. ( 202.) Children in protective custody have an interest in the prompt resolution of their custody status. ( 352, subd. (a); In re J.I. (2003) 108 Cal.App.4th 903, 912.) The parents of children in protective custody also have rights that must be protected to the extent possible. The parents rights, whether to participate in critical dependency proceedings or to obtain necessary reunification services, cannot be used to delay the dependency proceedings when a statute provides an absolute maximum limit on the time within which a particular hearing must take place. (D.E. v. Superior Court, supra, 111 Cal.App.4th at p. 513; 352, subd. (b).)

Even if the court was empowered with discretion to grant a continuance, it did not abuse its discretion in denying Tommies request: The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. ( 352, subd. (a); Cal Rules of Court, rule 1422(a)(2).) Courts have interpreted this policy to be an express discouragement of continuances. [Citation.] The courts denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.] Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.] (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.)

Tommie hired private counsel at the last minute to represent him at the hearing that he knew had been scheduled for two months. Tommie had also known for at least two months that the Department was recommending placement with Derrick as K.S.s biological father. The continuance would have delayed the overdue disposition again, and possibly for even longer than a week to 10 days in view of how dependency matters often progress (or fail to progress). Under these circumstances, there was no abuse of discretion. The courts denial of the continuance was not arbitrary, capricious, or patently absurd, resulting in a manifest miscarriage of justice. (In re Karla C., supra, 113 Cal.App.4th at p. 180.)

Similarly, the dependency court did not abuse its discretion in refusing to allow substitute counsel, especially when the new counsel repeatedly asserted to the court that he was not ready to proceed without a continuance but I have to be if forced by the court. As stated in County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 783-784, citing Flynn v. Fink (1923) 60 Cal.App. 670, 673: Parties litigant have no absolute right to insist upon a change of counsel at the last moment before the time set for the commencement of the trial, where such change of counsel requires a continuance in order that the case may be properly prepared for trial. The present case is different from that cited by Tommie because the record here suggests a purpose to delay the dependency proceeding and hamper efficient judicial administration in this critical area of the law. (People v. Stevens (1984) 156 Cal.App.3d 1119, 1129.)

As to Tommies estoppel argument, he relies inaptly on a case holding that a dependency petition may not be dismissed when the disposition hearing has been delayed by a series of continuances. Because the parent agreed and acquiesced in the multiple continuations, he cannot complain about any foot dragging . . . . (In re Richard H. (1991) 234 Cal.App.3d 1351, 1362.) Tommie was not seeking dismissal of the proceedings because of multiple continuances. All the parties may have agreed previously to the continuances but their acquiescence did not empower the court to grant another continuance beyond the mandatory statutory limit. (In re Josuha G. (2005) 129 Cal.App.4th 189, 197; Medina v. Board of Retirement, Los AngelesCounty Employees Retirement Assn. (2003) 112 Cal.App.4th 864, 869.)

4. Paternity

Tommie concedes he was not a model father but he argues Derrick should not qualify as a presumed father under Adoption ofKelsey S. (1992) 1 Cal.4th 816. This argument seems irrelevant in view of the court entering a judgment of paternity in favor of Derrick. Family Code section 7612, subdivision (c), provides: The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man. Once the trial court entered a judgment of Derricks paternity, it rebutted the prior finding of Tommies presumed paternity.

Notwithstanding, the Department argues Derrick was also properly determined to be a presumed father under Family Code 7611: 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. (In re Liam L. (2000) 84 Cal.App.4th 739, 745.)

None of the cases cited by Tommie directly support his position that Derrick could not qualify as the presumed father. In Adoption of Kelsey S., the court determined that a biological father who immediately filed suit to prevent the adoption of his newly-born daughter qualified as a presumed father. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 816.) Adoption of Kelsey S. announced the general principle that A court should consider all factors relevant to that determination. The fathers conduct both before and after the childs birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate a willingness himself to assume full custody of the childnot merely to block adoption by others. [Citations.] A court should also consider the fathers public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. (Adoption of Kelsey S., supra, at p. 849; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050-1051, 1060; In re Sarah C. (1992) 8 Cal.App.4th 964, 972; In re Julia U. (1998) 64 Cal.App.4th 532, 541; In re Elijah V. (2005) 127 Cal.App.4th 576, 583.)

Following Adoption of Kelsey S., the dependency and the appellate court in Sarah C. declined to make a determination of presumed paternity as to the biological father when his relationship with his daughter was casual and incidental: [W]hile there was uncontroverted evidence indicating Paul [the biological father] acknowledged Sarah was his daughter to a few friends and to his family and that for a few months he cared for Sarah, there was also evidence indicating he never sought to have himself listed on Sarahs birth certificate as her father, never sought to tell Mr. C. [the mothers husband] Sarah was not Mr. C.s daughter and never completed any paperwork with the Navy to have Sarah named as a dependent or a beneficiary of any insurance.

Other evidence tended to show Paul did not provide a home for Sarah. Paul moved in with Sarah and her mother because he needed a place to stay. He lived with Sarah and Dawn [the mother] for only a short period of time. He only once contributed any money to provide for a home (i.e., to pay for rent, food, etc.); people other than Paul (e.g., Dawns friends and Mr. C.) were the ones providing a home for Sarah. Paul lived with Sarah in the same home for only a brief period of time and once arrested for being absent without leave did not provide her with a home.

This evidence supports a finding Paul did not openly acknowledge Sarah as his daughter or receive her into his home; he only incidentally provided care for Sarah during a brief period while he was living with Dawn and her friends. (In re Sarah C., supra, 8 Cal.App.4th at pp. 972-973.)

Similarly, in In re Elijah V., supra, 127 Cal.App.4th at pages 583-584, the appellate court agreed with the dependency court that a biological father, who did not demonstrate sufficient commitment to the child, could not be determined to be a presumed father when he did not make financial contributions, did not publicly acknowledge paternity, and refused to accept physical custody. Nor was there persuasive evidence the mother refused to let him see the child.

In In re Tanis H. (1997) 59 Cal.App.4th 1218, 1229 and In re Michael H., supra, 10 Cal.4th at page 1051, the courts emphasized it is critical for a presumed father to receive the child physically into his home. But in Julia U. the appellate court found the dependency court had erred when it deprived the biological father of the opportunity to prove he should be determined to be the presumed father. He had not been identified until a year after the child was born but he did not deny or reject his paternity. Instead, he sought to have a relationship with Julia even though he was not allowed to have visitation. (In re Julia U., supra, 64 Cal.App.4th at pp. 535, 537, 541-542, and 544.)

The courts also recognize there are other circumstances in which a man seeking presumed father status may be thwarted in his efforts to establish and maintain a paternal relationship: . . . a father who would become a presumed father does not have exclusive control over the means to achieve that status. No matter how loving, caring, giving and nurturing he is, control over a mans presumed father status ultimately rests with the mother, [fn. omitted] or in some cases a third party. [Fn. omitted.] This is because the mother cannot be forced to allow the father to take the child into his home. [Fn. omitted.] In addition, there will be cases where the father cannot physically take the child into his home because, for example, the DCFS has taken custody of the child or the child, due to illness or birth defect, must remain in the hospital. (In re Jerry P. (2002) 95 Cal.App.4th 793, 806, 807, 811-812; In re Baby Boy V. (2006) 140 CalApp.4th 1108, 1117-1118.)

In the present case, the record demonstrates that, from the outset, Derrick had publicly acknowledged and advertised K.S. to be his child. Derricks last name appeared on the birth certificate. Derrick had attempted to establish and maintain a relationship with K.S. after he was born but was repeatedly thwarted by mothers resistance and lack of cooperation. He did not oppose the child support order that was obtained against him. Once he was contacted by the Department, Derrick executed a paternity inquiry form. He began to visit K.S. regularly, contribute financially, and make every effort to assume the paternal role. Finally, as soon as the court allowed Derrick to do so, he did receive K.S. into his home.

Based on the foregoing, we conclude Derrick tried to assume his parental responsibilities as fully as mother allowed and the circumstances permitted. He demonstrated a willingness to assume full custody of the child. He publicly acknowledged paternity. He paid financial expenses benefiting K.S. He participated fully and actively in the dependency proceedings. Thus, the dependency court did not err when it entered a judgment of paternity for Derrick and found that the judgment rebutted any presumption of Tommies presumed paternity. Under similar facts, the appellate court in In re J.L. (2008) 159 Cal.App.4th 1010, 1022-1025 also affirmed the dependency court.

5. Disposition

We affirm the findings and judgment of the dependency court.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

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^[1] All statutory references are to the Welfare and Institutions Code unless stated otherwise.

^[2] The other three children were R.T., born in 2001, Kr.D., born in 2004, and Ka.D., born in 2006.

^[3]People v. Marsden (1970) 2 Cal.3d 118.