In re T. S.

Filed 2/25/08 In re T. S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County,

Debra L. Losnick, Commissioner. Reversed in part and remanded with directions and otherwise affirmed.

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Fred W. Klink, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

Appellant Holly H. (mother) appeals an order of the juvenile court which deems Tom S. the presumed father of her child, Harmony.

The Department concedes there was insufficient evidence presented at the January 25, 2007 hearing to support the finding that Tom S., the biological father, is Harmonys presumed father.

Based on our review of the record, we accept the Departments concession. The order deeming Tom S. to be Harmonys presumed father is reversed and the matter is remanded to the trial court with directions to conduct a proper inquiry into the matter.

FACTUAL AND PROCEDURAL BACKGROUND

On November 29, 2006, the Department filed a non-detained petition pursuant to Welfare and Institutions Code section 300 for the protection of T., Ryley, Katie and Harmony, ages 15, 13, 6 and 4, respectively.^[1]

At the detention hearing on December 11, 2006, the two older children were ordered released to Tom S., and the two younger children to mother.^[2]

The jurisdictional/dispositional report of January 23, 2007, discussed, inter alia, an altercation between mother and T. which led to the filing of the instant petition. The report also states Tom S. told the social worker he considers Harmony his child, and that he would like to have Katie and Harmony live with their siblings in his home.

The matter was continued to January 25, 2007, at which time both mother and Tom S. were present and were represented by counsel. The juvenile court deemed Tom S. the presumed father of all four children, appointed an evaluator for the family (Evid. Code, 730) and set the matter for adjudication on March 13, 2007.

At the hearing on March 13, 2007, the juvenile court sustained the petition as amended and found the children were persons described by section 300, subdivisions (b) and (c). Both of the sustained counts alleged the parents had a history of communicating dysfunctionally with each other which created a detrimental environment for the children, and that such conduct by the parents endangered the childrens physical and emotional health, safety and well-being, resulting in a detrimental home environment and placing the children at risk. The matter was continued to March 26, 2007 for a disposition hearing.^[3]

In a disposition report for the March 26, 2007 hearing, the Department, in reliance on the evaluation prepared by Dr. Ward, recommended the two younger children be detained from mother and released to father where they can benefit from a stable environment, regular contact with their siblings, and a regular schedule that includes schooling for child Katie.

The March 26, 2007 disposition was continued to May 22, 2007. On that date the juvenile court declared the four children dependent minors under section 300, subdivisions (b) and (c), ordered T. and Ryley placed in fathers home and Katie and Harmony placed in mothers home, all under the Departments supervision. The juvenile court also ordered, inter alia, family reunification services to be provided to father as to Katie and Harmony. A progress hearing was set for June 19, 2007.

At the June 19, 2007 hearing, the court kept its prior orders in effect and ordered the Department to prepare and submit a report on conjoint counseling and visits.

On July 13, 2007, mother filed a timely notice of appeal from the May 22, 2007 dispositional order.^[4] The notice of appeal specifically challenges the juvenile courts finding that Tom S. is the minors presumed father.

CONTENTIONS

Mother contends there is no substantial evidence to support the juvenile courts finding that Tom S. is the presumed father of Harmony; and parents should be prevented from using the dependency court to resolve custody disputes which are best handled by the family courts.

DISCUSSION

1. Trial court erred in deeming Tom S. the presumed father of Harmony without conducting a proper inquiry into the matter.

a. General principles.

In order to become a presumed father, a man must fall within one of several categories enumerated in Family Code section 7611. Under Family Code section 7611, a man who has neither legally married nor attempted to legally marry the childs natural mother cannot become a presumed father unless (1) he receives the child into his home and openly holds out the child as his natural child, or (2) both he and the natural mother execute a voluntary declaration of paternity. (See Fam. Code, 7611, 7570; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050-1051 [43 Cal.Rptr.2d 445, 898 P.2d 891, 61 A.L.R.5th 769]; In re Liam L. (2000) 84 Cal.App.4th 739 [101 Cal.Rptr.2d 13].) A presumed father is entitled to custody and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449, 451 [24 Cal.Rptr.2d 751, 862 P.2d 751].) (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595-596.)^[5]

The statutory scheme requires the juvenile court to conduct an inquiry before making a presumed father finding, even if a man appears at the hearing and asserts he is the father. In this regard, section 316.2 provides in relevant part: (a) At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers. The presence at the hearing of a man claiming to be the father shall not relieve the court of its duty of inquiry. The inquiry shall include at least all of the following, as the court deems appropriate: [] (1) Whether a judgment of paternity already exists. [] (2) Whether the mother was married or believed she was married at the time of conception of the child or at any time thereafter. [] (3) Whether the mother was cohabiting with a man at the time of conception or birth of the child. [] (4) Whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy. [] (5) Whether any man has formally or informally acknowledged or declared his possible paternity of the child, including by signing a voluntary declaration of paternity. [] (6) Whether paternity tests have been administered and the results, if any. [] (7) Whether any man otherwise qualifies as a presumed father pursuant to Section 7611, or any other provision, of the Family Code. (Italics added; see also, rule 5.635 [duty of juvenile court to inquire into parentage].)

b. Trial courts finding that Tom S. is Harmonys presumed father is devoid of evidentiary support.

At the January 25, 2007 hearing, the trial court based its presumed father finding solely on the parties agreement that Tom S. is the biological father. The reporters transcript contains the following colloquy:

The Court: Is there any question that [Tom S.] is the father of all four of these children?

 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[Mother]: Yes, he is the biological father; . . . 

The Court: [addressing Tom S.s attorney] Is your client disputing he is Harmonys father?

[Tom S.] No.

The Court: Presumed father finding is made as to each child.

Mothers counsel then objected to the court making a presumed father finding as to the youngest child, Harmony, arguing [h]e has not held himself out as this childs father. He has not sought custody of this child. My client is asking that the court not make that finding today.

The juvenile court noted the objection and then reiterated its ruling that Tom S. is the presumed father of all four children.

The juvenile courts ruling is clearly erroneous because, as discussed above, biological paternity is not synonymous with presumed father status. (Francisco G. v. Superior Court, supra, 91 Cal.App.4th at p. 596.) Further, the fact that Tom S. is named on Harmonys birth certificate, without more, is not enough to confer presumed father status. (See, e.g., In re Kiana A., supra, 93 Cal.App.4th at pp. 1116-1118 [one man married mother and listed as father on birth certificate, but presumed father status found for another man who had taken the child into his home, cared for her needs, held her out as his own and signed a declaration of paternity in juvenile court].)

In the instant case, no evidence was presented that Tom S. had received Harmony into his home and openly held her out as his natural child, or that he and mother had executed a voluntary declaration of paternity. (Fam. Code, 7611; Francisco G. v. Superior Court, supra, 91 Cal.App.4th at pp. 595-596.) Therefore, we accept the Departments concession that insufficient evidence was presented at the January 25, 2007 hearing to support the finding that Tom S. is Harmonys presumed father.

2. Mothers remaining contention is meritless.

Mother also contends parents should be prevented from using the dependency courts to resolve custody disputes which are best handled by the family courts.

We recognize [t]he juvenile courts must not become a battleground by which family law war is waged by other means. It is common knowledge that the resources of local government social service agencies are stretched thin; in the juvenile dependency context those resources are manifestly intended to be directed at neglected and genuinely abused children.. . . . If indeed there is ever a place for it, the place for a custody battle is in the family law courts. There the battle will not consume public resources which are better directed to children who typically do not have the luxury of two functional parents fighting for custody, and where the taxpayers do not have to pick up the tab for lawyers and psychologists. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1382, italics added.)

Irrespective of the preference for having custody disputes resolved in family court rather than dependency court, the dependency court is empowered to make custody and visitation decisions in cases such as this, where it is necessary for the dependency court to take jurisdiction for the protection of the minors. (Compare In re Brison C., supra, 81 Cal.App.4th at p. 1382 [jurisdictional order reversed because respondent failed to prove the minor was a dependent child as defined in section 300].)^[6]

DISPOSITION

The January 25, 2007 order is reversed insofar as it deems Tom S. the presumed father of Harmony; the matter is remanded to the juvenile court with directions to conduct further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise specified. Also, all rule references are to the California Rules of Court.

^[2] Apparently, Mother and Tom S. have never married. It is undisputed that Tom S. is the biological father of all four children.

^[3] On March 13, 2007, mother filed a premature notice of appeal from the January 25, 2007 order which deemed Tom S. the presumed father of all four children.

^[4] In a dependency proceeding, the dispositional order is the judgment (In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703) and is the first appealable order in the dependency process. (In re Dolly D. (1995) 41 Cal.App.4th 440, 444, fn. 1.)

^[5] In contrast, a biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status as defined in Family Code section 7611. (Francisco G. v. Superior Court, supra, 91 Cal.App.4th at p. 596.) Only a presumed, not a mere biological, father is a parent entitled to receive reunification services. (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1116.)

^[6] On February 7, 2008, this court granted respondents request for judicial notice of the juvenile courts final judgment of January 14, 2008. Said judgment terminates the juvenile courts jurisdiction over the minors and provides that requests for any modifications of the custody order must be brought in the family court.

Respondent contends that if no appeal is filed from the [January 14, 2008] order terminating jurisdiction, the matter of the present appeal will be rendered moot. (Italics added.) However, as we noted in the February 7, 2008 order, the time for filing notice of appeal from the January 14, 2008 judgment had not yet expired. Therefore, although this appeal could ultimately become moot, at present the appeal was not moot. Therefore, this court determined to resolve the instant appeal on the merits.