In re Lana L.







Filed 9/20/11 In re Lana L. CA2/7






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re LANA L., a Person Coming Under the Juvenile Court Law.	B229905 (Los Angeles County Super. Ct. No. CK66535)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CARLOS D., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Jacqueline Lewis, Temporary Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Senior Deputy County Counsel, for Plaintiff and Respondent.

_______________________

Carlos D., the biological father of Lana L., appeals the juvenile court’s denial of his motion to be declared her presumed father and to place her in his custody. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Cynthia L. is the mother of Joseph P. and Lana L. In an earlier proceeding in 2007, the children were declared dependents of the juvenile court and were detained out of the home of Cynthia L. and her husband, Johnathan S. (who is not the biological father of either child). Johnathan S. was granted presumed father status in that dependency proceeding. Dependency jurisdiction was terminated in April 2008.
In March 2009, Johnathan S. was arrested for welfare fraud. Arresting officials referred the children to the Department of Children and Family Services for an investigation of allegations of child endangerment. After an investigation and a team decision making meeting, DCFS filed a petition alleging that Joseph P. and Lana L. were described by Welfare and Institutions Code[1] section 300, subdivisions (b) and (g). Among the allegations were that Lana L.’s father, Carlos D., had failed to provide her with the necessities of life or provisions for support.
A first amended petition filed in April 2009 added allegations under section 300, subdivisions (a) and (c); revised the allegations of the prior petition under subdivision (b) and omitted the subdivision (g) allegations about provisions for support. As of April 2009, Joseph P.’s biological father had been located and notified of the dependency proceedings, but Lana L.’s father, Carlos D., had not been found.
In June 2009, the juvenile court found that the children were subject to the jurisdiction of the juvenile court under section 300, subdivisions (b) and (c).
On October 5, 2009, at the dispositional hearing, Carlos D. appeared and asserted that he was Lana L.’s father. Carlos D. and Cynthia L. both told the court that he was Lana L.’s biological father and that a DNA test had confirmed it; Johnathan S. confirmed that he was not Lana L.’s biological father. Carlos D. filed a JV-505 statement regarding his parentage of Lana L. in which he requested the appointment of an attorney; stated that he had told his mother and brothers that he was Lana L.’s father; and that he had taken her to the park, shopping, movies, and out for meals on about three occasions in the prior year and a half. He asserted that he visited Lana L. often during the first three years of her life when she lived in Northern California. Carlos D. also reported that in the prior year and a half he had bought her clothes and DVD’s on three occasions. The court found that Carlos D. was Lana L.’s alleged father but declined to make further findings until seeing the DNA test results. The court proceeded with the dispositional hearing and ordered the children removed from parental custody.
By November 2009, based on DNA test results, the juvenile court made the factual finding that Carlos D. was Lana L.’s biological father. Carlos D. requested visitation with Lana L., and the court orally approved day visits in Los Angeles, with the first few visits monitored until the two established a relationship. The minute order for the hearing did not include visitation provisions.
Over the next several months, Carlos D. had monthly monitored visits with Lana L. Typically he visited along with Cynthia L. During visits they tended to watch movies or play games. DCFS observed that Lana L. appeared to be bonded with Carlos D. Lana L. had not mentioned any desire to live with Carlos D. but he had expressed interest in taking custody of her. According to DCFS, Carlos D. wanted her to live with him in Northern California, but he was not willing to assume custody of Joseph P. DCFS acknowledged that Carlos D. was willing to take care of Lana L., but “the fact remains that he has not been the constant father figure in her life. He has not raised her and still has had very little interaction with her. Although they have fun on their visits, he has not displayed the ability to be a ‘parent’ to Lana. Lana orders him around during the visits and although he will interact with Lana it is through her persistence.”
At the review hearing on March 5, 2010, the court and the parties discussed Carlos D.’s visitation with Lana L. and whether the biological fathers had received notice of the hearing. The court continued the hearing to permit proper notice to the children’s biological fathers and for the submission of a report on the possibility of unmonitored visits in a neutral setting between Carlos D. and Lana L.
On May 4, 2010, Carlos D. filed a section 388 petition requesting that the finding that Johnathan S. is the presumed father be vacated; that he, Carlos D., be named presumed father; that Lana L. be placed with him and his home assessed for placement of Joseph P.; and that he have unmonitored, weekend overnight visits with Lana L. and Joseph P. Carlos D. made the following evidentiary showing in support of his petition:
· In the first two years of Lana L.’s life, he visited her almost daily, and during visits he “changed her diapers, bathed her, fed her, clothed her, sang to her, read to her, spoke to her, held and hugged her and participated in all the usual things a parent does for a child of that age”;
· Although Cynthia L. continually told him that he was not Lana L.’s father, he told his family and friends that she was his daughter and persisted in asking Cynthia L. about Lana L.’s paternity;
· He had told his family, his friends, and acquaintances that Lana L. was his daughter;
· In 2005 or 2006, Cynthia L. moved the family to Hollywood and he no longer had contact with them;
· In 2008, Cynthia L. contacted him and admitted he was Lana L.’s father;
· He took a DNA test in May 2008 to prove his paternity;
· From the time he received the DNA results, he had given Lana L. clothing, shoes, meals, toys, DVDs, and books, and had paid for hotel rooms and entertainment during visits;
· Lana L. and Joseph P. had visited with Carlos D. and his family at his home in Northern California and Lana L. knew his mother and brothers;
· Starting in 2008, he visited with Lana L. and her family for four hours every month for four or five months;
· Thereafter, he began visiting the family in Hollywood for two nights at a time every month, up until DCFS removed the children;
· He continued to visit the children during the dependency proceedings;
· Lana L. called him “Daddy” and Joseph P. considered him his uncle;
· He lived in a two-bedroom apartment with his mother and they were eager to have Lana L. and Joseph P. live with them;
· If necessary they could and would obtain larger housing;
· He was employed as a security guard and had been employed steadily for at least three years; and
· He loved Lana L., wanted to be known as her father, and wanted to take care of her; he also loved Joseph P. and wanted custody of him.
The court ordered the section 388 petition set for hearing and directed DCFS to prepare a responsive report.
DCFS recommended that Carlos D.’s petition be denied. DCFS questioned a number of Carlos D.’s factual assertions. Specifically, DCFS contended that Carlos D. had not spent significant time with Lana L. or Joseph P. The children had lived the majority of their lives with Cynthia L. and Johnathan P. Lana L. did not recall spending time at Carlos D.’s home and said she did not know Carlos D.’s mother or brothers. When Cynthia L. lived in Northern California, they lived near Carlos D. and his family; they visited the house twice for a birthday party. When Carlos D. visited the family in Southern California, the hotel room was paid for by members of Cynthia L.’s church, not by Carlos D. There were no entertainment costs because they just stayed in the hotel room. Carlos D. had not maintained consistent visitation with the children since the dependency proceeding began: according to the foster mother, he visited with the children only when there was a court hearing and did not call them on the telephone. As far as Carlos D.’s early involvement with Lana L., DCFS reported that Cynthia L. recalled him watching movies and television with her when he would come over to visit. Carlos D. had, however, been involved with Joseph P.’s life since he was a year old and did take Lana L. and Joseph P. to his house when Lana L. was older.
DCFS did not doubt Carlos D.’s love for Lana L. or his desire to provide a home for the children, but reported that he had “not had [a] significant and consistent relationship with both children in the past to translate to the relationship Mr. D[.] is claiming ownership to in the [section] 388 petition now before the court. Even with the advent of this case, Mr. D[.] has not been consistent with his monitored visits with the children and the visits that have occurred with him and Lana had to be stopped because according to the . . . social worker and foster mother Mr. D[.] discussed the case and made derogatory statements to the children about [Johnathan S.] and mother. Mr. D[.] in his [section] 388 petition alleges that Lana calls [him] father but Lana refers to both [Johnathan S.] and Mr. D[.] as her father. Lana reports that she would like to live with [Johnathan S.] and not Mr. D[.]; while on the other hand Joseph reports that []he would like to live with Mr. D[.] in [Northern California]. CSW [clinical social worker] has had two interviews with mother regarding Mr. D[.]’s involvement in Lana’s life and at no time did mother state that Mr. D[.] was involved or participated in Lana’s life to the extent being alleged in the [section] 388 petition presently before the court. Thus Mr. D[.] has had no significant past relationship with the children for a bond to have been formed. In view of the foregoing, Mr. D[.] has not concretely demonstrated since the inception of this case, that he indeed has a relationship with the children to necessitate the children being placed in his care. Secondly, DCFS has not been able to evaluate Mr. D[.]’s home to determine if it is appropriate for the children to be ordered to his care. CSW has had a difficult time contacting M[r]. D[.] to conduct an assessment of the home he shares with his mother and to report on his progress. Further, the mother who is currently being offered reunification services with the children will be disadvantaged if the children were ordered placed with Mr. D[.] in [Northern California]. Finally, Joseph, who is the only child who wants to live with Mr. D[.] is not Mr. D[.]’s son.”
On November 15, 2010, the juvenile court addressed Carlos D.’s section 388 petition. Carlos D. and Johnathan S. testified. Carlos D. acknowledged that he was not on Lana L.’s birth certificate and that he had not provided any monetary support for Lana L. but said he had bought items for the children. When asked why he had not asserted his parental rights when Lana L. was a baby, he said, “My mistake. I made a mistake back then.” He had undergone a paternity test when she was three years old. After Cynthia L. took the children to Southern California, he had no contact with her for two years and was unable to get information about her whereabouts from her family. He had never taken any legal steps to assert his rights as Lana L.’s father in the four years since the first paternity test. He became involved in the children’s life again in 2009 when Cynthia L. called him and told him that Johnathan S. was mistreating the children. He did not report what Cynthia L. told him to any authorities.
Johnathan S. testified that he could not be the children’s biological father. He acknowledged signing a paternity declaration and asking for presumed father status. He described acting in a paternal role for Lana L. since she was one month or three months old. He had met Carlos D. before Lana L. was born. Cynthia L. had confided in Johnathan S. shortly after Lana L.’s birth that although she and Carlos D. both knew Carlos D. was the child’s biological father, “he was not going to accept it because he was all high on drugs and was not willing to take the responsibility of Lana, and if his mother ever found out, that would be what she would make him do.” According to Johnathan S., he told Carlos D. just months after Lana L. was born that he was her father. Johnathan S. described Carlos D. being put to a choice: either “step back” and let Johnathan S. be Lana L.’s father or “step up to the plate” and parent her himself. Johnathan S. testified that Carlos D. said he would step back.
When Lana L. was three years old, Johnathan S. contacted Carlos D. at the start of the earlier dependency court proceedings. Johnathan S. told Carlos D. that he needed help with the children because they were in foster care, and Carlos D. refused. Carlos D. said, “‘Johnathan, you said you were supposed to be handling this now. I ain’t got time for it. You need to take care of this.’”
As far as Johnathan S. knew, Carlos D. had not visited Lana L. until after Johnathan S. went to jail in March 2009 for welfare fraud. The basis of the welfare fraud charge was that he was collecting welfare money for Lana L. and Joseph P. Johnathan S. testified that he thought it was in the children’s best interest for them to know their biological fathers as their fathers.
The juvenile court observed, “I have been doing this work for a really long time, coming up on 20 years. I think that factually this is one of the most confusing, convoluted cases I have ever run across.” The court first considered the question of the children’s paternity and found the relevant inquiry to be whether anyone could claim presumed father status under Family Code section 7611, subdivision (d): receiving the child into his home and openly holding out the child as his natural child.
The court stated, “The reality here is that Mr. S[.] lied to this court.” The court first read from the transcript of a 2007 hearing in which Johnathan S. testified that there was a possibility that he was Lana L.’s biological father, and then observed, “The reality is that based on his testimony today, he indicated to me that he was absolutely lying to me on that date, because he could not possibly be the biological father.”
Lies about parentage notwithstanding, however, the juvenile court found that Johnathan S. had held himself out to be the father and openly accepted both children into his home. With respect to Lana L., the court stated, “[C]ase law indicates that it really is about who comes forward and promptly accepts the parental responsibilities. I am not happy that Mr. S[.] lied. I am unhappy about mother’s actions in this case . . . . [¶] The mother’s consistently lying through the course of this case and her playing these three gentlemen for fools, frankly, is rather astonishing. [¶] But Mr. D[.] did not step forward. He had some visits while Lana was young. He never filed any kind of anything in family law court to try to establish paternity. [¶] He indicates that he saw Lana in the hospital, didn’t sign the paternity declaration at that time. He indicates that he never provided the child with support, although he provided the little food and clothing. [¶] In the history of this case, he has not held the child out to be his own and openly accepted the child into his home. [¶] And for the same reasons that I have pointed out, Mr. S[.] has done that. That seems to be uncontroverted. From the time Lana was very little, he had held the child out to be his own and openly accepted her as his own. And that he has done so through the history of this case, the child is remaining in his care and custody until relatively recently. And, therefore, based on this court’s understanding of the law[] as it stands on today’s date, the court is leaving the presumed father status [undisturbed]. I indicated it that way because, frankly, based on the history of this case, I am not sure that either of these children are ever going to be returned to the mother or Mr. S[.] and I am clearly not sure that it wouldn’t be better for these children to at some point be placed with Mr. P[., Joseph P.’s biological father] and Mr. D[.], although I am very concerned about Mr. D[.’s] ongoing relationship with the mother in this case that for me today is his biggest obstacle in regards to ever thinking about placing Lana with him.”
The juvenile court did not rule out placing Lana L. with Carlos D. at some point, however, and ordered that his visitation with the children continue. Carlos D. appeals.

DISCUSSION

Carlos D. does not claim on appeal that he is entitled to presumed father status by virtue of Family Code section 7611, but contends instead that he should be named Lana L.’s presumed father under the authority of Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.). We review a presumed father determination under a substantial evidence standard of review (In re M.C. (2011) 195 Cal.App.4th 197, 213), although Carlos D. suggests that because his motion for presumed father status was made pursuant to section 388, review should be under the abuse of discretion standard applied to rulings on section 388 petitions. Under either standard of review, the juvenile court did not err.
Kelsey S. was a private adoption case in which a biological father sought to assert his parental rights over a child from two days after his birth but was thwarted in his desire for custody by the mother’s conduct. (Kelsey S., supra, 1 Cal.4th at pp. 821-822.) The family court and the Court of Appeal concluded that the biological father could not be named a presumed father under the relevant statutes because he had never taken the child into his home, but the California Supreme Court held that the statutory scheme violated the unwed biological father’s constitutional rights to due process and equal protection to the extent that it permitted a mother unilaterally to preclude her child’s biological father from becoming a presumed father and therefore permitted the courts to terminate his parental rights on nothing more than a showing of the child’s best interest. (Id. at p. 849.) The Supreme Court held, “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Ibid.)
The facts of this case are nothing like those in Kelsey S., where the father sought to establish paternity from nearly the moment of the child’s birth. When Lana L. was born in 2003, Carlos D. did not go to the hospital, sign an acknowledgement of paternity, or take steps to have himself named as the father on her birth certificate. Based on Lana L.’s resemblance to him, Carlos D. believed her to be his biological child, but he did not assert paternity or provide financial support to her. Carlos D. conclusively determined in 2008 that Lana L. was his child by means of a DNA test, and he learned of dependency proceedings involving Lana L. from Johnathan S., but he did not intervene or take any steps to assert his parental relationship with Lana L. until October of 2009, and he did not move to be declared her presumed father until May 2010. Although Carlos D. blames Cynthia L. and Johnathan S. for his failure to be recognized as Lana L.’s father, we have not identified any impediment to his acting to demonstrate a commitment to his parental responsibilities toward Lana L. years before he did. This evidence establishes that Carlos D. did not “promptly come[] forward and demonstrate[] a full commitment to his parental responsibilities—emotional, financial, and otherwise,” (Kelsey S., supra, 1 Cal.4th at p. 849) and demonstrates that the juvenile court’s ruling refusing to name Carlos D. Lana L.’s presumed father was supported by substantial evidence and was not an abuse of discretion.
Section 388 is a general provision permitting the court, “upon grounds of change of circumstance or new evidence . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” (§ 388, subd. (a).) Carlos D. did demonstrate that Johnathan S. had lied to the court regarding the possibility that he had fathered Lana L., but that new evidence did not change the central fact that Johnathan S. had received Lana L. into his home and openly held her out as his natural child since her early infancy, thus qualifying him as a presumed father under Family Code section 7611, subdivision (d). Because Carlos D. did not demonstrate that he was entitled to presumed father status, he failed to demonstrate a change of circumstances or new evidence that could serve as a basis for modifying the court’s earlier orders under section 388.

DISPOSITION

The order is affirmed.


ZELON, J.
We concur:


WOODS, Acting P. J.


JACKSON, J.





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