In re M.T.
Filed 9/3/13 In re M.T. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
>
In re M.T., a Person Coming Under the Juvenile Court Law. | |
J.R., Plaintiff and Appellant, v. SAN FRANCISCO HUMAN SERVICES AGENCY et al., Defendants and Respondents. | A133991 (San Francisco County Super. Ct. No. JD103394) |
In
this dependency proceeding, the
juvenile court ruled that A.S. was the presumed father of the child M.T. and
J.R. was the de facto parent of the child.
J.R. now appeals, arguing that the court abused its discretion in
finding that A.S. was the presumed father of the child. We affirm.
FACTS
On
December 6, 2010,
Francisco Human Services Agency (the agency) filed a Welfare and
Institutions Code section 300 petition seeking to have then five-year-old M.T.
declared a dependent based on, among other things, the failure of mother to
care for the child. At the time of the child’s detention, mother
was living in a shelter and had been previously living with J.R., who was the
presumed father of M.T.’s older half-sibling.
M.T.’s birth certificate did not list a father, but mother reported she
thought the child’s biological father was A.S.
Mother stated A.S. never paid any support and did not know M.T., and the
child only knew J.R. who held out M.T. to be his own child. On February 2, 2011, the juvenile court took
jurisdiction over M.T. after sustaining the failure to protect allegations
against mother. After a dispositional
hearing on March 22, 2011, the juvenile court declared M.T. to be a
dependent and placed the child with a relative.
The court ordered reunification
services for mother and therapeutic visits between the child and A.S.
Thereafter,
A.S. and J.R. filed competing motions to elevate their status. A.S. sought to elevate his status from
biological father to a Kelsey S.
father (Adoption of Kelsey S. (1992)
1 Cal.4th 816), arguing that mother had consistently interfered with his
efforts to establish his paternity of the child. J.R. sought to elevate his status to presumed
father on the ground he had received M.T. into his home and openly held the
child out as his own (Fam. Code, § 7611, subd. (d)
juvenile court resolved the outstanding motions by granting A.S.’s motion for
motion for presumed father status without prejudice. Five months later, on September 6, 2011, J.R.
renewed his motion for presumed father status.
A.S. also filed a motion for presumed father status.
The
juvenile court considered evidence on the requests for presumed father status
on November 29, and December 2, 2011.
J.R., A.S., six-year-old M.T., and the agency’s social worker assigned
to the case, testified at the hearings.
The juvenile court found J.R. qualified as a presumed father in that he
held M.T. out as his own, considered the child his own, and had behaved in a
manner consistent with being a father.
The court also found A.S.’s status as a Kelsey S. parent qualified him for presumed father status.
Because
“ ‘there can be only one presumed father’ †(In re Jesusa V. (2004) 32 Cal.4th 588, 603 (Jesusa V.)), the juvenile
court weighed the competing fatherhood presumptions, applying the statutory requirement
that “the presumption which on the facts is founded on the weightier
considerations of policy and logic controls†(§ 7612, subd. (b)). The court acknowledged J.R. “has taken on the
role of father to [the child], held [the child] out as his [child]
. . . . He has provided
for [the child] on a daily basis when he lived in the home. He was present at [the child’s] birth, and
obviously loves and cherishes his relationship with [the child].†Nevertheless, the court found that “unlike
most of the cases that discuss the extant familial relationship versus mere
biology, [A.S.] is not a mere biological father. Nor is this case about establishing
biological ties. It is a case in which I
must choose which developing parent/child relationship should be preserved and
protected. And to do that I turn to the
specifics of the case. [¶] When, upon learning that [mother] was pregnant and
believing that he might be [the child’s] father, [A.S.] made every possible
effort to establish his role as father.
He offered both personal care and resources for [the child] and was
repeatedly rebuffed. But for mother’s
assurance that [A.S.] was not [the child’s] father and her complete resistance
to let him participate in [the child’s] life, it is clear that [A.S.] would have
come forward in an active role much sooner.
And in fact, each and every time he had an opportunity to come forward,
take responsibility and establish a parental relationship with [the child],
[A.S.] has demonstrated his commitment.â€
[¶] . . . While [J.R.] and [mother] were some time ago a
family unit, they have not been so for quite some time. [They] split up and [J.R.] left the family
home and remained gone for quite some time.
The family unit has not been together during the pendency of this dependency
action and both [J.R. and mother] confirmed that they have no intention of
resuming their relationship. [¶] Finally, given [J.R.’s] alcohol abuse and
allegations of domestic violence in the relationship, [J.R.’s] impact on [the
child] has been by no stretch without its damaging elements.†Because “ ‘the weight of the interests
of the competing father[s] [were] in relatively equal balance,’ †the
court found “ ‘biological paternity might properly be relied upon to
determine which presumption carries more weight,’ †and “the weightier
interest in this case favors [A.S.]. He
not only is the biological father to [the child], but has demonstrated a desire
and ability to care for [the child] and to provide a stable and loving
home. While [A.S.] was not a constant
part the first years of [the child’s] life, that was by no choice of his. By all accounts the visitations between [the
child] and [A.S.’s] wife and other children have gone quite well and [the
child] has begun to develop a bond with [A.S.].
Finally, once given the opportunity, [A.S.] has received [the child]
into his home and has treated [the child] as his own and has developed a bond
with [the child]. [¶] I am granting [A.S.] presumed father status.â€
DISCUSSION
“Presumed father
status is governed by section 7611, which sets out several rebuttable
presumptions under which a man may qualify for this status, generally by
marrying or attempting to marry the child’s mother or by publicly acknowledging
paternity and receiving the child into his home.†(In re
J.L. (2008) 159 Cal.App.4th 1010,
1018 (J.L.); § 7611, subds. (b)
– (d).) “Although section 7611 makes no
provision for a Kelsey S. father in
its list of presumptions, a father asserting valid Kelsey S. rights may effectively qualify for presumed father status
as the result of his constitutional right to parent, which overrides any
contrary statutory direction.†(
“Occasionally
the complicated pattern of human relations gives rise to more than one
legitimate claimant to presumed father status, and the juvenile court must
resolve the competing claims.†(
p. 1019.) Section 7612 sets forth
the procedure for reconciling competing presumptions, stating, in pertinent
part, that “[i]f two or more presumptions arise under Section . . .
7611 that conflict with each other . . . , the presumption which
on the facts is founded on the weightier considerations of policy and logic
controls.†(Id., at subd. (b).) “[I]n
determining which presumption [was] . . . founded on weightier
considerations of policy and logic,†the juvenile court is “obliged to weigh
all relevant factors†(Jesusa V., supra,
32 Cal.4th at pp. 637, 608), and “in the end protect the well-being of the
child†(Craig L. v. Sandy S. (2004)
125 Cal.App.4th 36, 43).
On
appeal J.R. presents no argument challenging the juvenile court’s ruling
declaring A.S. to have met the requirements of a presumed father based on his
status as a Kelsey S. father. (J.R.
v. D.P. (2012) 212 Cal.App.4th 374, 389; In re Cheyenne B. (2012) 203 Cal.App.4th 1361, 1378, fn. 22 (
Rather, J.R. argues he also qualified as a presumed father, and
challenges only some of the facts and criteria relied on by the juvenile court
in determining which paternity presumption was founded on the weightier
considerations of policy and logic pursuant to section 7612, subdivision
(b). We conclude J.R.’s arguments do not
require reversal.
The
juvenile court’s ruling is reviewed for an abuse of discretion. (Jesusa V.,
supra, 32 Cal.4th at p. 607.)
We agree with J.R. that the sole test of abuse of discretion is not
whether the juvenile court’s action is “whimsical, arbitrary, or capricious.†Nevertheless, as we have explained,
“ ‘[b]road deference must be shown to the [juvenile court] judge. The reviewing court should interfere only
“ ‘if [it] finds that under all the evidence, viewed most favorably in
support of the [juvenile] court’s action, no judge could reasonably have made
the order that he did.’ . . .†’
[Citations.] . . . The
juvenile court’s opportunity to observe the witnesses and generally get ‘the
feel of the case’ warrants a high degree of appellate court deference.†(In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Thus, to reverse the order under review, we
would have to conclude the juvenile court’s discretion could be exercised in
only one way, compelling a finding in favor of J.R. as a matter of law. We cannot so conclude in this case for the
reasons we now discuss.
Contrary
to J.R.’s contention, the record supports the juvenile court’s finding that the
family unit that deserved protection was that of mother, the child, and the
child’s half-sibling. When the child was
initially detained in late 2010, J.R. was no longer living with mother, the
child, and the child’s half-sibling. By
the time of the court hearings in late 2011, the child had been returned to the
care of mother, who was in a residential program and receiving treatment for
her chronic mental health issues. The
child’s older half-sibling was then living with relatives and visiting with
mother and the child. Both children were
attending the same school. The
relationship between mother and J.R. had ended and J.R. did not know if he
would move back in with mother in the future.
Thus, we reject J.R.’s contention that the juvenile court applied too
narrow a definition of “the family unit that deserved protection.â€
We
also see no merit to J.R.’s contention that the juvenile court failed to
consider the public policy of maintaining his existing parental relationship
with the child. The principal goal of
our paternity statutes is to protect the child’s well-being. (Kelsey
S., supra, 1 Cal.4th at p. 845; see Jesusa V., supra, 32 Cal.4th at pp. 607-608.) Consequently, in weighing the competing
presumptions, the juvenile court here would have been remiss had it failed to
consider the fact that J.R.’s relationship with the child had “damaging
elements†due to J.R.’s “alcohol abuse and allegations of domestic
violence.†(See Welf. & Inst. Code,
§ 300.2 [“a home environment free from the negative effects of substance
abuse is a necessary condition for the safety, protection and physical and
emotional well-being of the childâ€]; Fam. Code, § 3020, subd. (a)
[“domestic violence in a household where a child resides is detrimental to the
childâ€].) The court also properly
considered that the absence of a parent-child relationship between A.S. and the
child was not determinative as each time A.S. “had an opportunity to come
forward, take responsibility and establish a parental relationship with [the
child], [A.S.] has demonstrated his commitment.â€
Last,
we see no merit to J.R.’s argument that the juvenile court improperly used the
term “bond†in describing the developing relationship between A.S. and the
child. In the agency’s status review
reports, the social worker assigned to the case reported that both the agency
and A.S. were following the family therapist’s suggestion that any relationship
between A.S. and the child was to be pursued on a gradual basis to allow the
child time to become comfortable with A.S.
By July 18, 2011, A.S. was granted unsupervised visits with the child,
with the first three or four visits to take place at the same time as the
therapeutic visits, and if those visits went well then the visits would be
entirely unsupervised. In the September
2011 report, the social worker reported the child had visited A.S. at least
every two weeks in a therapeutically-supervised setting. There had also been a couple of weekend
daytime visits that included the mother and A.S.’s family, an arrangement
suggested by the family therapist so that the child could become better
acquainted with A.S. Unsupervised visits
were “moving gradually in order to allow the child time to gain comfort withâ€
A.S., and it was recommended that A.S. have unsupervised daytime visits with
the child at least every two weeks. The
social worker opined the child was continuing to get to know A.S., and “[t]hus
far, that relationship appears to be developing well.†At the court hearings in late 2011, A.S.
testified he was then seeing the child once every week for an hour and a half
and the child had a sleepover at A.S.’s home once a month. Since March 2011, there had been five or six
overnight visits; the first two were done before the issuance of a court order
granting overnight visits but with the permission of mother and at the request
of the child. A.S. described his activities
with the child, who appeared to enjoy the time spent with A.S. and his family
very much; the child never asked to go home and asked to stay longer. During the child’s interview with the
juvenile court, the child described the activities during the visits with A.S.,
and confirmed enjoying the visits and wanting to continue to see A.S. Thus, contrary to J.R.’s contention, we
conclude no bonding study or conclusion of a social worker was necessary before
the juvenile court could make an assessment and reasonably find A.S. and the
child were developing a “bond†based on the nature of their visits and the
child’s response to those visits. No
specific evidence was offered from which the juvenile court was required to find
that the child had such a substantial, positive emotional attachment to J.R.
such that the child would be greatly harmed if A.S. was declared to be the
child’s presumed father.
DISPOSITION
The
December 9, 2011 order is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] We recite only those facts as are
necessary to give context to the issues raised on this appeal.
references are to the Family Code.
