In re Vera M.
Filed 5/21/13 In re Vera M. CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
In re Vera M.,
a Person Coming Under the Juvenile Court Law.
HUMBOLDT COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
Bryan C.,
Defendant
and Appellant.
A135533
(Humboldt
County
Super. Ct.
No. JV110164)
Appellant
Bryan C. (Father), the biological father of dependent child Vera M., was
incarcerated during most of the mother’s pregnancy and nearly all of the
child’s young life. Father reunited with
Vera and her mother (Mother) upon his release from prison. He lived with them for about two months
before the child was removed from the parents’ custody after she suffered
serious scalding injuries
while Father was giving her a bath.
At the
jurisdictional hearing, the trial court denied Father’s request to participate
because he was at that time only an alleged father. Father established his biological paternity
after a disposition hearing had been held and order entered. The court denied his subsequent request for
presumed father status and his request to reopen the
of Vera’s injuries. We conclude the
denial of presumed father status is supported by substantial evidence and that
a rehearing on the jurisdictional allegations was not required. We affirm.
I. Background
Father had
a relationship with Mother in northern California
in 2009. In August, shortly after Mother
became pregnant, he was arrested as a fugitive from justice and extradited to Florida,
where he served a prison term from November 2009 to July 2011. Vera was born in the spring
of 2010. After Father was released
from prison in July 2011, he returned to California
and moved in with Mother, Vera, and Mother’s older child in
August 2011. On about October 23, 2011, Vera (then 19
months old) suffered scalding burns when Father placed her in the kitchen sink
for a bath. Emergency services were not
contacted until about 7:00 a.m. on
October 24. Vera was then airlifted
to a hospital due to severe burns on her lower torso, buttocks and right
thigh. She also had bruising on her left
side.
Mother made
statements to an investigating officer, Deputy Seth Crosswhite, and an
emergency social worker. She had been
watching a movie in her bedroom when she heard Vera scream. After Father told Mother he was giving the
child a bath, her concerns were allayed because Vera often screamed when she
got a bath. The crying continued,
however, and when she went to see what was happening she saw Father passed out
on the bed next to Vera, who was wrapped in a blanket. Mother later found an empty pint bottle of
Hot Damn 100 proof alcohol that she thought Father might have drunk that night. Mother saw some red blisters on the child’s
leg, but discounted them as signs of a recurring rash. When she awoke in the morning, however, she
saw that Vera’s blisters were “really bad and had broken open.†She confronted Father, who said Vera had
jerked away from him while he was giving her a bath and got splashed with hot
water by accident. When Mother said she
might call the police, Father became upset, hit her and left the home.
that morning and had unplugged the phone.
Mother eventually called her “IHSS worker,â€
who came to the home and contacted emergency medical personnel and the police.
Mother said
Father “had never done anything like this before†and she did not believe he
intentionally harmed the child. She said
the water comes out of the faucets in her home at “boiling temperatures†and
could easily have burned Vera. She had
never had any concern about how Father interacted with the children. The IHSS worker similarly told the social
worker she had “never had any concerns about either [Mother’s] or [Father’s]
care of the children.â€
Father
voluntarily contacted the police to talk about the incident. He waived his Miranda rights
name="_ftnref3" title="">[3]
and gave the following account to Crosswhite.
While giving Vera a bath in a split sink in the kitchen, he ran very hot
water on one side of the sink while she was sitting in the other side of the
sink. Before Father could add cold water
to cool down the bath water, Vera slipped in the sink. She grabbed the faucet to brace herself,
causing the faucet to turn toward her and pour hot water on her right hip and
leg area. Her hip and leg were red but
the skin did not blister. Father took
her out of the sink, wrapped her in a towel, and put her in a diaper, and lay
her down. She fell asleep. In the morning, he and Mother saw that Vera’s
hip and leg had developed blisters and the blisters had broken. The parents got into an argument about the
incident and Mother told him to leave, which he did. He said the bruises on Vera’s face were from
an incident a day or two prior when she fell off the bed. He denied drinking heavily on the day of the
incident. Father gave a similar account
to the Humboldt County Department of Health and Human Services
(Department). Crosswhite released Father
because he did not have enough information to determine if the injury was
accidentally or intentionally inflicted.
Crosswhite
made arrangements to test the water temperature in Vera’s home. He turned on the hot water at the kitchen
sink and within 10–15 seconds it was “hot enough it produced visible steam
coming from the faucet. The water was
to[o] hot to touch with my bare hands.â€
Using a kitchen thermometer, he measured the water at just under
150 degrees Fahrenheit. Crosswhite
then examined the water heater and found a dial with three temperature settings
ranging from 122 to 158 degrees.
The heater was set at 122 degrees.
A social worker at Shriner’s Hospital later told the Department that it
takes five seconds at 140 degrees to cause a third degree burn. Crosswhite reportedly “forwarded his report
to the DA with recommendations that [Father] be charged with felony child
abuse.â€
Medical
personnel at the first hospital to examine Vera reported “there was blood
present behind [her] left eardrum, indicating a blow to the head. The report also says that an MD determined
that the burns were consistent with immersion burn.†A Shriner’s Hospital intake report dated October 24, 2011, stated that
the child had “some bruising across her face and her neck, on the jaw site on
the left side, as well as on the right side. . . . [S]he has second
degree burn injury to her bilateral buttocks, perineum and right thigh. Total amount of burn wound appears to be
approximately 12% total body surface area.â€
A report dated October 25 stated that Vera was diagnosed with
hemotympanum (bleeding behind the eardrum) and there was “[c]oncern for child
abuse.†A report dated October 27
stated an ophthalmologist found no intraoccular hemorrhages and an ear, nose
and throat doctor found “mildly injected R tympanic membrane, no signs of
hemotympanum.†It is not clear whether
the October 27 report meant the hemotympanum had resolved or whether it
had never existed.
According
to a social worker at Shriner’s Hospital, a doctor there said the burn was
consistent with an immersion burn even though it was not a “classic†pattern,
and there were no “splash burns (hot water splashing up away from main
burn).†The social worker also said that
“the doctor would not call it a[n] immersion burn if the child accidentally
fell into a tub†and that the hospital staff was very concerned that the injury
was not accidental. The doctor also said
the bruises were older than the burn and a CT scan indicated mild cerebral
edema “from trauma and not a normal childhood fall etc.†The Shriner’s Hospital discharge summary said
Vera’s pain was well-controlled with Tylenol and codeine. A CT
scan of her head “showed no skull fractures, but mild cerebral edema.
. . . She was seen by Ophthalmology who declared her free of any
retinal hemorrhages or ocular abnormalities.
She was also seen by the Otolaryngology Service who ruled out
hemotympanum. . . . She also had a full body skeletal survey that was
negative for any new or healed fractures.â€
Her discharge physical examination cited a “[h]ealing superficial
abrasion to the chin.â€
The
Department reported that Mother had taken prescription methadone and four to
six other pills (apparently prescription pills) on the day of the
incident. Mother attended Narcotics
Anonymous meetings and the extent of her drug use was unknown. She had prior convictions for driving under
the influence and transportation and sales of narcotics. The maternal grandmother told the Department
she had serious concerns about her daughter’s neglect of her children—she had
frequently visited Mother’s home and found Mother asleep and the older boy in a
dirty diaper, hungry and unsupervised—and she had considered seeking
guardianship of the children. Father had
a 2009 conviction for driving without a license and Florida
convictions for child neglect and possession of controlled substance. The child neglect conviction occurred when
Father and his girlfriend were pulled over and arrested for possession of
narcotics while the girlfriend’s little sister was in the car.
Petition and Detention
On
November 3, 2011, the Department filed a juvenile dependency petition on
behalf of Vera pursuant to Welfare and Institutions Code section 300,
subdivisions (a) (infliction or risk of serious physical harm), (b)
(failure to protect), (e) (knowledge of serious physical abuse of child under
five), and (i) (act of cruelty).
name="_ftnref4" title="">[4] As later amended, the petition alleged under
section 300, subdivision (a) that Vera “was physically injured by her
father, which resulted in second degree immersion burns to her lower
torso. On 10/23/2011, Vera was immersed in 150 degree water
while her father attempted to give her a bath in the kitchen sink. The hot water heater was deliberately set at
the highest temperature. The second
degree burns extended from [her] back, covering her buttocks and perineum and
down the front and side of one leg.
Vera’s skin has sloughed off most of the burn which covered 12% of her
total body. [¶] A CT-scan was given to Vera while at Shriners
Hospital which showed she suffered
from Cerebral Edema and Hemotymparium (bleeding behind the eardrum) attributed
to blunt force trauma. Vera also has
numerous bruises to her face including her chin, bruising to her forehead and
left cheek. All these injuries were in
different stages of healing.†Similar
allegations were made under section 300, subdivisions (e) and
(i). The petition alleged that Mother
knew or should have known that Father was violent and had been drinking on the
day of the incident, that she had unaddressed substance abuse issues that might
have contributed to the incident, and that she delayed in obtaining emergency
medical care for Vera even though she knew or should have known the child was
in severe pain due to her injuries.
At the
detention hearing, Father was not present and no counsel appeared on his
behalf. Mother’s counsel told the court
that Mother would be seeking a restraining order against Father on behalf of
herself and Vera. When asked about
Father’s whereabouts, Mother said, “[T]here’s been no contact talking. He’s called my phone and stopped at some
point three days ago until just last night and then this morning on my cell
phone. . . . I have not seen him.â€
She said Father had no other family in Humboldt
County. On November 4,
2011, the trial court ordered Vera detained and placed with her
maternal grandmother.
Jurisdiction and Statement Regarding Parentage
In its
jurisdiction report, the Department wrote that both parents had “unaddressed
substance abuse issues which contributed to their inability to parent their
children and keep them safe. [Mother]
has significant physical health challenges which make it nearly impossible for
her to move quickly and provide help to her children if an emergency should
occur . . . . [¶] The relationship between [the parents] is
unstable and plagued by violence, which contributed to [Mother’s] delay in
seeking treatment for Vera’s very serious injuries.†The Department recommended the court sustain
the petition. A contested jurisdiction
hearing was scheduled for December 19,
2011, with a pretrial hearing scheduled for December 7.
On December 6, 2011, a
privately-retained attorney entered an appearance for Father, and Father filed
a statement regarding parentage (Judicial Council Forms, form JV-505). In the statement, Father wrote that he
believed he was Vera’s father and asked for presumed father status, while also
asking for blood or DNA testing to confirm his paternity. Father wrote that he moved in with Mother and
the child as soon as he was released from prison; he lived with them from
August to October 23; he contributed his wages to the household; he told
his family, Mother’s family and the local community that he was Vera’s father;
and he believed his family, who lived in Louisiana, had sent Vera gifts. “I have certainly held myself out to the
world as Vera’s father. I have lived
with her and supported her. However, the
current allegations, my own anguish, and the anger that I sense from the
mother’s side of the family cause me to pause and reflect on my present and
future role in Vera’s life. I think that
at this point in time it is prudent, for both Vera’s sake and mine, to request
confirmation of paternity via a D.N.A. test. [¶] I do want to
participate in these proceedings. I
understand that I will not be able to request reunification services and
custody until I elevate myself as either her natural father and/or her presumed
father. However, I would like an
opportunity to review the allegations and reports that have been filed against
me and provide the court with additional information as may be necessary to
allow the court to understand what occurred on October 23.â€
At the December 7, 2011 pretrial
hearing, Father’s counsel requested, and the court granted, an order for DNA
paternity testing. Father was not
present.
Father
filed an at-issue memorandum before the scheduled contested hearing on
jurisdiction. “The Father does not dispute the evidence of neglect and injury. The Father strongly questions the evidence of
any intentional abuse.†He asserted a
right to participate at the jurisdictional phase as the alleged father. “The purpose of a juvenile hearing is to
ascertain the jurisdiction facts and ‘all information relevant to the present
condition and welfare of the child.’ (Cal.
Rules of Court Rule 5.534(a).)
Without the Father’s input, this hearing will be less of a fact-finding
enterprise than a ratification process for the [Department’s] requested
findings.†(Italics added.)
At the December 19, 2011 pretrial
hearing on jurisdiction (before Hon. Joyce D. Hinrichs), Father did not appear
personally, but he was represented by retained counsel. Mother’s counsel informed the court that
Mother and the Department had reached a settlement on jurisdiction. Father continued to assert his right to
contest the jurisdictional allegations that related to his conduct. He specifically expressed concern that if the
allegations of intentional abuse were sustained he would face a bypass of
services even if he was later able to establish paternity. However, the court ruled that “until he does
become [a] presumed father, he doesn’t have standing to contest
jurisdiction. If he . . .
becomes a presumed father, he can request some kind [of] hearing as relates to
any information he believes may have been inaccurate, but it can’t delay the
process at this time, and he doesn’t have standing to litigate the matter until
he is a presumed father.†Father’s
counsel offered to point out “the factual problems with the petition†but the
court ruled he had no standing to do so.
Mother
submitted on the petition. On the
Department’s motion, the court struck the cruelty allegations under
section 300, subdivision (i) and sustained the petition as modified. A disposition hearing was scheduled for January 6, 2012, and later
continued to January 12.
Disposition
On December 20, 2011, Father’s
counsel wrote to the Department and minor’s counsel on behalf of Father’s
parents, who offered to adopt Vera if she would otherwise be placed in foster
care. He reported that Father was living
with his parents in Louisiana,
“where he is clean, sober, working, and attending church.†The letter said Father “understands
. . . that he will not reunify with Vera through this dependency
action . . . [and his] only connection to Vera will be premised on
the good will of her care providers and a lengthy track record over the next
several years of leading a stable, sober, and moral life.†Father’s counsel similarly stated in a
December 20 email to the Department and deputy county counsel that Father
“realizes that he won’t reunify with Vera through this process. . . .
[Father’s] plan is to try to preserve his parental rights (obviously assuming
he is the father). When he has
established a sufficient amount of time under his belt (he understands that
this may be years) so that the family trusts him, he would like to slowly start
a relationship again with Vera. To this
end, we are hoping that his ‘monster’ status in this case is not overstated. My reading of the reports is that this was a
tragic accident brought on by negligence and alcohol. I would hope that whatever recommendations
you make to the court leave open the possibility that [he] can play a small
role in Vera’s life sometime in the future.â€
He asked for the Department’s cooperation in completing paternity
testing.
Attachments
to the Department’s January 5,
2012 disposition report included a medical history for Vera that
stated inter alia that, as of November 14,
2011, Shriner’s Hospital determined her burns had “healed well with
nice pink tissue formed, no signs of scarring.â€
The Department identified the family issues as domestic violence and
substance abuse. “[Father] was
physically violent to [Mother] and yet she continued to allow him to remain in
her home. If [Mother] had removed him
from the home, Vera’s physical abuse would not have happened.†Mother “stated that she is sorry she ever
allowed [Father] to come into their lives.â€
The Department recommended continued removal from Mother’s home and
reunification services for Mother.
At the January 12, 2012 disposition
hearing, Father was not present, but he was represented by counsel. Mother submitted on the report. The court removed Vera from Mother’s custody. The court found that Vera was brought within
the jurisdiction of the court under section 300, subdivision (e)
because of the conduct of both parents, and that the child had been adjudicated
a dependent as a result of the infliction of severe physical harm by “a
parent.†Each of these findings
triggered bypass provisions that allowed the court to deny services to
Mother. (§ 361.5,
subds. (b)(5), (6).)
name="_ftnref5" title="">[5] The court found by clear and convincing
evidence that “[i]t would benefit the child to pursue reunification services
with the mother,†which allowed it to grant Mother services despite
section 361.5, subdivision (b)(6).)
(§ 361.5, subds. (b)(6), (c).)
evidence, that reunification services to the mother are likely to prevent
reabuse or continued neglect of the child or that failure to try reunification
will be detrimental to the child, because the child is closely and positively
attached to that parent,†which allowed it to provide services to Mother
despite section 361.5, subdivision (b)(5), which is based on the
section 300, subdivision (e) jurisdictional finding. (§ 361.5, subd. (c).)
father only, and it found by clear and convincing evidence that placement with
Father and visitation with Father would be detrimental to Vera. The order finding stated that visitation
between Vera and Father was “suspended.â€
However, an order finding that reunification services to Father would
not be in the best interests of Vera, and denying such services was stricken at
the request of the Department, apparently pursuant to prior agreement with
Father’s counsel. An interim status
review hearing was scheduled for April 12 and a six-month review hearing
was set for June 28.
Section 388 Petition Seeking Presumed Father Status and Services
On February 28, 2012, Father
received confirmation of paternity. On March 2, 2012, he filed a
section 388 petition seeking presumed father status, discovery, a reopened
jurisdiction hearing, and reunification services. He alleged that he had “moved expeditiouslyâ€
since December 19, 2011,
to confirm his paternity and had obtained positive DNA results, which were
attached to the petition. He argued the
requested orders would be in the Vera’s best interests because, assuming he
could establish her injuries were accidental, she should have the benefit of
having a father. The court granted a
hearing on the petition on April 17, which was later continued to
April 19 and then to May 21,
2012.
On March 12, 2012, the Department
prepared a “Report in Response to 388,†which was not filed until
May 21. “Although [Father]
allegedly engaged in a sexual relationship with [Mother] around the time that
she was impregnated with Vera, he was shortly [there]after incarcerated in Florida. [He] was not named as the father on Vera’s birth
certificate, and did not sign the Proof of Paternity. [He] remained incarcerated for the duration
of [Mother’s] pregnancy and the majority of Vera’s life. [He] had only returned to Humboldt
County and lived with [Mother] and
her children for two months prior to the time that he inflicted a severe
immersion burn on Vera. During the time
[he] lived with [Mother] and her children, [he] and [Mother] engaged in severe
domestic violence and substance abuse in the presence of the children. Vera will likely have life-long scarring as a
result of [Father’s] physical abuse of her, and still suffers from a fear of
water. [Father’s] criminal prosecution
for Vera’s injuries is still pending. [¶] [Father] has not once attended
court in this dependency proceeding. Although [he] requested a DNA test and one
was ordered by the court, he fled the state without completing the test. [He] currently remains out of
state . . . . [He]
has not attempted to make any contact with the department since 11/08/2011. He never inquired about Vera’s progress,
healing or general wellbeing. [His]
parents, who acquired counsel for [him], appear to be the only party interested
in elevating [his] fatherhood status. [¶] . . . [¶] It is recommended
that the request to elevate [Father] to presumed fatherhood be denied.â€
In a “trial
brief†filed before the hearing on the petition, Father protested the
Department’s withholding of information from him and alleged that it had
mischaracterized the facts. He alleged
that the only documentation he had received from the Department was the
petition and detention report, and the Department had refused his request for a
copy of the jurisdiction report.
name="_ftnref8" title="">[8] He said that he had received copies or
partial copies of some other reports from other parties and he argued the
Department’s Report in Response to 388 mischaracterized the burn injury as
intentional, whereas the evidence pointed to accidental injury; overstated the
evidence of domestic violence; misinformed the court that Vera would suffer
from permanent scarring; and misstated that Father had left California before
completing paternity testing, even though testing had not been ordered until he
was already in Louisiana. Father’s
attorney had been told by another attorney in the case that Father “had been
deemed the designated ‘monster’ in this case.â€
Moreover, the Department did not assist Father in obtaining paternity
testing, which was contrary to counsel’s prior experience with the Department.
The brief
also described Father’s goals in filing the petition: “[Father] does not have the financial
resources to relocate to Humboldt County. He realizes that he will probably not
‘reunify’ with Vera within the six-month time frame. What [he] wants . . . is to be
given an opportunity to be vetted by the social worker. He would very much like to travel to Humboldt
County. He has been saving his money. He wants to see his daughter, and he would
like to meet with the social worker and minor’s counsel. However, he fears that the County will forbid
any contact with the Minor and the social worker until the Court recognizes his
status as ‘presumed father.’ †In a
later filing, Father wrote that, despite his limited financial resources,
Father and his parents intended to fly to California to attend the contested
hearing. However, the Department social
worker refused their request to meet before the hearing and the Department
denied their requests to visit the child.
Moreover, he had learned that the district attorney intended to file
felony child abuse charges against him and Mother, so he knew he would have to
make another trip to California
to attend an arraignment.
The
Department filed an at-issue memorandum on May 9, 2012, in which it argued that Father had
“acted in a manner inconsistent with the parental role†and cited
1212. The Department further argued,
“ ‘Presumed fatherhood for purposes of dependency proceedings, denotes one
who promptly comes forward and demonstrates a full commitment to
. . . parental responsibilities—emotional, financial and otherwise.
. . .’ In re A.A. (2003) 114 Cal.App.4th 771, 779; [
a man demonstrating a ‘full commitment’ and they are anything but
‘prompt.’ â€
Hearing on Section 388 Petition
At the May 21, 2012 contested hearing
on the section 388 petition (before Hon. John T. Feeney), Father was again
not present, but appeared through retained counsel. The court considered the following
evidence: the detention and jurisdiction
reports; DNA testing results that established Father’s biological paternity;
Father’s statement regarding parentage; Father’s court-filed consent to a child
support order (which was filed in March); and an offer of proof by Father that
he was sober, working, and attending church in Louisiana, and that he had
undergone a psychological evaluation and was deemed not to have an anger
management problem.
Father
argued he had met his initial burden of proof by establishing that he openly
held out Vera as his own and received her in his home as required by Family
Code section 7611, subdivision (d). The Department argued, “Even if the Court
believes that [Father] somehow has minimally complied with [Family Code
section 7611, subdivision (d)], . . . that minim[al]
compliance [must] be balanced . . . with the egregious injury this
child suffered. [¶] That’s an injury that [Father’s counsel] has admitted
was caused by [Father]. It was at best,
negligent, at wors[t], an intentional act. . . .
[¶] . . . [¶] We have shown by clear and convincing
evidence that the father’s conduct toward this child has been
inappropriate. It’s undisputed that he
. . . fled the state after the Court ordered the DNA testing. He continues to reside out of state. He has never personally appeared in this
court ever since this case started. He
has never paid a dime in child support, and there is no evidence that he
has.†Mother’s counsel joined in the Department’s
argument and added, “My client feels strongly about her position.†Minor’s counsel said, “[I]f we’re going to
say that [Father’s] actions rose to the level of making him not able to be
presumed . . . , we’d have difficulty in all our cases ever
getting alleged fathers to presumed father status. [¶] . . .
[W]hy is mother getting services?
Because I don’t think her actions were any less egregious than
[Father’s].†She also specifically noted
that Father had contributed income to the household. However, she argued that Father’s conduct in
leaving the state amounted to abandonment and was sufficient to deny his
petition.
The court
denied the petition. “[T]he Court cannot
ignore and disregard the circumstance of the injuries sustained by
. . . Vera. Also, the Court
cannot ignore and disregard the fact that [Father] apparently left California
shortly after the detention hearing, has not returned and has . . .
abandoned the minor child. [¶] The Court finds by clear and convincing
evidence that this matter does not fall within Family Code section 7611
subdivision (d). Although[]
[Father] has from all indications openly held out . . . Vera as his
natural child[,] [h]e has not received the child into his home within the
intent and meaning of subdivision (d) of 7611 of the Family Code.â€
II. Discussion
The Uniform
Parentage Act (Fam. Code, § 7600 et seq.; formerly Civ. Code, § 7000
et seq.) distinguishes “alleged,†“biological,†and “presumed†fathers. “ ‘ “A man who may be the father of
a child, but whose biological paternity has not been established, or, in the
alternative, has not achieved presumed father status, is an ‘alleged’
father. [Citation.]†[Citation.]
“A biological or natural father is one whose biological paternity has
been established, but who has not achieved presumed father status
. . . .†[Citation.]
[¶] “Presumed†fathers are accorded far greater parental rights than
alleged or biological fathers.
[Citation.].’ †(
4–5.) A biological father’s rights are
limited to establishing his right to presumed father status. (In re A.S. (2009)
180 Cal.App.4th 351, 362.) Only
presumed fathers are entitled to reunification services, although the court may
in its discretion grant services to a biological father if doing so will
benefit the child. (In re Zacharia D. (1993) 6 Cal.4th 435, 451; § 361.5,
subd. (a).)
Biological
paternity nevertheless carries weight in the presumed fatherhood assessment,
especially if there is no one else competing for the status. “The biological connection between father and
child is unique and worthy of constitutional protection if the father grasps
the opportunity to develop that biological connection into a full and enduring
relationship.†(Adoption of Kelsey S., supra,
1 Cal.4th at p. 838.)
“ ‘The significance of the biological connection is that it offers
the natural father an opportunity that no other male possesses to develop a
relationship with his offspring. If he
grasps that opportunity and accepts some measure of responsibility for the
child’s future, he may enjoy the blessings of the parent-child relationship and
make uniquely valuable contributions to the child’s development.’ †(Id.
at p. 837, quoting Lehr v. Robertson
(1983) 463 U.S. 248, 262.)
Father argues on appeal that the
trial court erred in denying him presumed father status. He argues he established his prima facie case
for presumed father status under Family Code section 7611,
subdivision (d)
name="_ftnref9" title="">[9]
and the Department did not produce clear and convincing evidence rebutting the
presumption. He also argues his due
process rights were violated because jurisdictional findings of infliction of
intentional harm to Vera were used against him in denying him presumed father status
and he never had an opportunity to contest those findings. We conclude the court’s finding that Father
was not a presumed father is supported by substantial evidence and Father’s due
process rights were not violated at the hearing on his status.
A. Father
was Not Denied Due Process at Presumed Father Status Hearing.
As
a preliminary matter, we reject Father’s argument that his due process rights
were violated when the court “denied him presumed fatherhood based on
[jurisdictional] allegations he had no chance to contest.†More specifically, Father implies that the
court relied on its previous jurisdictional findings
against him under section 300, subdivisions (a) and (e), when it denied him
presumed father status.
Father does
not specifically challenge in this appeal the trial court’s denial of his
request to actively participate in the jurisdictional hearing.
process and statutory rights at the time of that hearing. “ ‘Alleged fathers have less rights in
dependency proceedings than biological and presumed fathers. [Citation.]
An alleged father does not have a current interest in a child because
his paternity has not yet been established.
[Citation.]’ (In re O.S. [(2002)] 102 Cal.App.4th 1402,
1406.) As such, an alleged father is not
[automatically] entitled to appointed counsel or reunification services. (§§ 317, 361.5, subd. (a); In re
Zacharia D., supra,
6 Cal.4th 435, 448–449; In re O.S., supra, at p. 1406.)
[¶] Due process for an alleged father requires only that the alleged
father be given notice and ‘an opportunity to appear and assert a position and
attempt to change his paternity status.
[Citations.]’ [Citation.]†(In re Paul H. (2003) 111 Cal.App.4th
753, 760.) An alleged father has no
right, however, to continuance of a jurisdiction hearing to allow him to
establish paternity before the hearing takes place. (In re
Karla C. (2003) 113 Cal.App.4th 166, 179–180.) And even “ ‘[A] biological father’s “desire to establish a personal relationship
with [his] child, without more, is not a fundamental liberty interest protected
by the due process clause.â€
[Citation.]’ [Citation.]†(In re
A.S., supra, 180 Cal.App.4th at
p. 359.)
Even
assuming that the allegations of intentional infliction of injury on the child
would require that Father be given an opportunity at some point in the
proceedings, as a subsequently determined biological father, to contest those
allegations,
title="">[11]
he proffered no evidence on this issue in the section 388 hearing, and declined
the opportunity to conduct discovery.
Moreover,
we find that the basic premise of Father’s argument—that the court relied on
the jurisdictional findings in denying him presumed father status—to be
unsupported. The record clearly reflects
that the court considered only the detention and jurisdiction
father status and that Father had a full and fair opportunity to contest the
information contained in those reports at the hearing.
Before the
hearing on Father’s request for presumed father status, Father served subpoenas
duces tecum on the social worker and deputy county counsel, who responded with
motions to quash. At the hearing, the
court addressed this discovery matter first.
The court granted the motions on the ground the subpoenas were
procedurally improper, but stated that Father could seek access to the same
documents under section 827. Father
further complained that the Department had not provided him with copies of all
reports in the case and argued his due process rights were being violated because
information had been withheld. The
Department responded that Father had been provided all relevant information in
the Department’s possession. The court
suggested that Father could seek a continuance, but Father’s counsel said that
he was “prepared to proceed.â€
At the
Department’s request, the court took “judicial notice†of the detention and
jurisdiction reports at the hearing. We
infer that the court did not merely judicially notice the existence of the
reports, but considered the content of the reports as evidence, as is typical
in juvenile dependency hearings.
(§§ 281, 355, subd. (b); Cal.
Rules of Court, rule 5.684(c); In re
M.B. (2011) 201 Cal.App.4th 1057, 1070–1071.) The Department represented that Father had
received these reports, and Father did not challenge this representation. Father objected only to the court’s taking
judicial notice of conclusions in the
jurisdiction report or prior court findings based thereon.
Father was
on notice that the Department intended to oppose his request for presumed
father status by relying on the circumstances of Vera’s injury and Father’s
relocation to Louisiana. Before Father told the court he wanted to
proceed with the hearing, the Department said that Father had a “copy of the
388,†which we understand to be its “Report in Response to 388,†and said it
intended to submit on that report.
Father did not deny that he had received the report. In the report, the Department argued inter
alia that the circumstances of the child’s injury and Father’s relocation to Louisiana
weighed against granting him presumed father status. The evidence Father presented at the hearing
was designed in part to rebut these arguments.
In addition to his DNA test results and his statement regarding
parentage,
title="">[13]
he submitted a recently-filed consent to payment of child support and he
elicited testimony from the social worker that a psychiatrist who had examined
him in Louisiana opined that Father did not have an anger management
problem. In lieu of eliciting further
testimony from the social worker, Father made an offer of proof, which the
court accepted: Father had provided the
Department with several letters describing Father’s conduct in
Louisiana—showing “that he is sober, that he is working, that he’s attending
church, that he’s essentially a new man from the man who injured Vera back in
Octoberâ€â€”as well as the results of a hair follicle test showing he was negative
for all controlled substances except marijuana, but the Department refused to
meet with him to assess his fitness as a presumed Father in the event he
traveled to California for the hearing.
In sum, we
find no evidence in the record that the court relied upon the prior
jurisdictional findings of intentional misconduct in its decision or that
Father was denied a full and fair opportunity (including an opportunity for a
continuance and further discovery) to contest the allegations against him
regarding Vera’s injury, at least insofar as it related to his petition for
presumed father status.
B. Substantial Evidence
Supports Denial of Presumed Father Status.
“A man is
presumed to be the natural father of a child†if he “receives the child into
his home and openly holds out the child as his natural child.†(Fam. Code, § 7611, subd. (d).) With exceptions not relevant here, this
presumption “is a rebuttable presumption affecting the burden of proof and may
be rebutted in an appropriate action only by clear and convincing
evidence.†(Fam. Code, § 7612,
subd. (a).) A man seeking presumed
father status bears the initial burden of proving by a preponderance of the
evidence that he satisfied the requirements of Family Code section 7611,
subdivision (d). (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 368 (
grounds by Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 532, fn. 7; In
re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.) We review the trial court’s ruling on whether
he met this initial burden for substantial
evidence. (Charisma R., at p. 368.)
If the initial showing has been made, the burden shifts to the party
opposing presumed father status to rebut the presumption by persuading the
court the case is “an appropriate action†for rebuttal and producing clear and
convincing evidence that supports rebuttal.
(See In re Nicholas H. (2002)
28 Cal.4th 56, 62–64, 70.)
name="_ftnref14" title="">[14]
We conclude
that substantial evidence supports the trial court’s finding that Father did
not meet his initial burden, and we thus do not need to address the rebuttal
analysis. In reviewing a ruling for
substantial evidence, “we are required to view the evidence in the light most
favorable to those determinations. We
draw all reasonable inferences, and resolve conflicts in the evidence, in favor
of the trial court’s findings, and we do not reweigh the evidence.†(In re
A.A., supra, 114 Cal.App.4th at p. 782.)
It was
undisputed in the trial court, and it is undisputed on appeal, that Father
openly held out Vera as his natural child.
(See Fam. Code, § 7611, subd. (d).)
The trial court, however, found that Father did not receive the child
into his home within the meaning of the presumed father statute. Substantial evidence supports this finding.
Although
the requirement of receipt into one’s home could literally be satisfied by a de
minimis visit or brief stay by the child in a father’s residence, it has been
given more substantive meaning by the courts.
Under Family Code section 7611, “the father’s rights flow from his
mother and/or child.†(
8 Cal.App.4th 964, 972, italics added.)
Subdivisions (a) through (c) of Family Code section 7611 turn on
the father’s acts of formalizing the relationship through marriage or an
attempted marriage. Subdivision (d) of
that section is designed to identify a similar commitment to the parental
relationship for unwed fathers. (See
975 [presumed father status properly denied where alleged father lacks a
“substantial familial relationship to the child . . . [, and in] such
[a] case, the provision of services does not ‘reunite’ a family but creates a
new oneâ€]; In re A.A., supra,
114 Cal.App.4th at p. 787 [presumed father finding reversed as to
biological father who never established himself as “a true family memberâ€].) To satisfy
this standard, receipt into the home must be substantial enough to signify
assumption of parental responsibility for the child. (See Charisma
R., supra, 175 Cal.App.4th at p. 374 [“receipt of the child into the
home must be sufficiently unambiguous as to constitute a clear declaration
regarding the nature of the relationship, but it need not continue for any
specific durationâ€].)
At least
two courts have upheld findings that fathers failed to receive a child into his
home even though the fathers lived with the mother and child for some period of
time. The In re Sarah C. court cited the following evidence as support for
the trial court’s finding that the biological father did not receive the child
into his home: “Paul moved in with Sarah
and her mother because he needed a place to stay. He lived with Sarah and Dawn 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., Dawn’s 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.†(In re
Sarah C., supra, 8 Cal.App.4th at p. 973.) In In
re Spencer W., the evidence similarly supported a finding that a
possible biological father did not receive the child into his home, even though
he lived with the child and mother for two years: “The evidence permitted the conclusion that
Leonard did not receive the child into his
home, but instead that mother permitted Leonard to reside in
with Spencer was not demonstrative of Leonard’s commitment to the child but
reflected that Leonard acted out of personal convenience and
self-interest. This conclusion is amply
supported by these facts:
(1) mother paid for the apartment (and apparently most other
expenses); (2) she supported an unemployed Leonard; and (3) when
mother’s funding ceased Leonard stopped residing with Spencer.†(In re
Spencer W., supra, 48 Cal.App.4th at p. 1653.)
Father
properly notes that certain facts of this case distinguish it from
household, and helped care for Vera.
Nothing in the record indicates that he was just visiting or that he
maintained another home elsewhere.
Moreover, the fact that Father (unlike the fathers in
child supports the inference that he considered Mother’s home his home and
planned to continue living there.
Nevertheless,
Father had lived with Mother and Vera for only a little over two months of
19-month-old’s life and for none of Mother’s pregnancy. It is Father who bears responsibility for his
incarceration, which could not have been unexpected, since he was a fugitive
from justice when Mother was impregnated.
(See In re Kobe A. (2007)
146 Cal.App.4th 1113, 1123 [alleged father did not receive child into home due
to his incarceration]; Glen C. v.
Superior Court (2000) 78 Cal.App.4th 570, 585–586 [father did not receive
children into his home in part because he committed crimes leading to his
incarceration during the children’s early lives].) Father argues it is irrelevant that he
received Vera into his home for only a short period. He cites Charisma
R., which held there was no specific durational requirement for this
element of Family Code section 7611, subsection (d). (Charisma R.,
supra, 175 Cal.App.4th at p. 374.)
He also cites In re A.A.,
which held that a father qualified under the same statute based on the child’s
regular visits to his home even though they never lived together. (In re
A.A., supra, 114 Cal.App.4th at p. 784.) However, each case is distinguishable. In Charisma R.,
a same-sex couple had lived together for five years and planned the pregnancy
with the intent they would jointly parent the child. The nonbiological mother was present at birth
and cared for the child in the couple’s joint home for six weeks, at which
point the biological mother moved out and denied her more than minimal further
access to the child. (
374.) Despite the brief period of
cohabitation with the child, we held, “The record overwhelmingly supports the
trial court’s findings that Charisma welcomed Amalia into her shared home with
Kristina and consistently acknowledged her parental relationship and
responsibilities to the child.†(
re A.A., the presumed (nonbiological) father’s visits took place regularly
over a period of years, apparently since the child’s birth except for one year
when he was incarcerated. (
783–784.) Significantly, the child saw
herself as part of a family unit that included the presumed father and his
biological son, her half-sibling. (
Moreover,
the trial court properly took into consideration other evidence that Father had
not yet established any significant family relationship with Vera in the two
short months he lived with her. There
was evidence that he engaged in domestic violence with Mother in the home, that
Vera incurred nonaccidental bruising and a head injury in the home (a result of
either physical abuse or a failure to protect by Father), that he drank heavily
while the child was in his care on the night she was burnt, and that he was
grossly negligent (at best) in both allowing her to be burned and in failing to
obtain prompt medical care for her burns.
This evidence undermines the inference that Father’s cohabitation with
Mother and Vera reflected a commitment to assuming full parental responsibility
for his child.
Further
undermining the inference that Father had assumed full parental responsibility
for Vera is evidence that Father initially fled the home when police were
called (although he later contacted and spoke to the police) and moved to
Louisiana following the incident, rather than remaining in California and
asserting presumed father rights. Even at
the time of the section 388 hearing he had attended none of the dependency
hearings, had not sought visitation with Vera, and had no plans to move back to
California if granted presumed
father status.
On these
facts, we cannot conclude that the court erred in finding that Father was not
Vera’s presumed father because he did not receive her into his home within the
meaning of Family Code section 7611, subdivision (d).
The trial
court’s denial of Father’s section 388 petition is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Simons, Acting P. J.
_________________________
Needham,
J.
that Father hit her in the head, face and upper body area, but she declined
medical attention and declined to file a domestic violence report. Crosswhite examined Mother later that morning
and saw only a pea-size bruise just under the corner of Mother’s right
eye. Father denied hitting Mother. Crosswhite ultimately declined to arrest
Father for domestic violence “as [Mother’s] statement was very inconsistent and
she stated [sic] didn’t want to
pursue any domestic violence charges at the time of my interview with her. I also felt . . . I had no evidence
to substantiate her claims as she had no marks or abrasions . . . .†Mother later told the social worker that
Father had never abused her “other than a couple times when she woke up, he
lashed out and hit her (supposedly in his sleep since his eyes were closed).â€
dystrophy, a progressive and incurable disease.
She “[u]ses a cane or wheelchair to get around and [when using the cane]
still walks holding the wall. Is slow
moving.†Her IHSS worker was apparently
a support person related to her disability.
