In re D.J.

Filed 1/22/10 In re D.J. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant A.A. is the biological father of four-year-old D.J., a dependent child of the juvenile court. Defendant contends the order terminating his parental rights is invalid because the juvenile court failed to find that he was a presumed father within the meaning of Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). D.J.s mother, defendant T.J., whose parental rights were also terminated, joins in Fathers argument, but raises no contentions on her own behalf. We disagree with Father because the court properly found facts sufficient to disqualify him from Kelsey S. presumed father status. Accordingly, we affirm.

I. FACTS

On October 17, 2008, respondent Contra Costa County Bureau of Children and Family Services (Bureau) filed a dependency petition (Welf. & Inst. Code,  300) against Mother and Father on behalf of D.J., who was then three years old.[1] The petition alleged that D.J. had been seriously physically abused by Mothers boyfriend. Father appeared in court for the detention hearing. On October 31, 2008, the court ordered that Father undergo genetic testing to determine paternity.

On November 24, 2008, the Bureau filed an amended dependency petition alleging severe physical abuse of a child under five ( 300, subd. (e)) and cruelty ( 300, subd. (i)). The Bureau alleged that D.J. suffered severe physical abuse in Mothers home at the hands of Mothers live-in boyfriend, A.W. D.J. had suffered severe head and brain injuries, retinal hemorrhages, lacerations to his liver, and blunt abdominal trauma. A.W. had repeatedly struck D.J. with a belt, beat him, punched him, and bit him, leaving bruises, injuries, and scars all over D.J.s body. The Bureau alleged Mother had done nothing to obtain emergency medical treatment for D.J., despite the fact that she saw his face and head were swollen and that A.W. was cleaning up blood.

The jurisdictional hearing was held on December 5, 2008. Father did not appear. The Bureau reported that Father was not listed on D.J.s birth certificate and was scheduled for DNA testing on December 15 to determine his relationship to D.J. Pending the test results, the Bureau considered him only an alleged father of the child. The court sustained the dependency petition.

The dispositional hearing was held January 30, 2009. Again, Father did not appear. The Bureau reported that Father arrived hours late for his December 15 genetic testing appointment, necessitating rescheduling of the testing. Father failed to appear for the rescheduled testing on January 2, 2009. Father claimed he did not receive notice of the testing, which was again rescheduled. Apparently, Father appeared for testing the morning of the dispositional hearing. Fathers counsel indicated she would file a section 388 petition (388 petition) pending the results of the paternity testing.

In the dispositional report, the Bureau recommended that Father remain classified as an alleged father due to his lackluster response to DNA testing and his little motivation to be the childs father . . . . The Bureau also noted that, when D.J. was hospitalized in October 2008 because of the abuse, Father had supposedly told a hospital social worker he knew A.W. was abusing D.J.

The juvenile court ordered no reunification services for Mother or Father and set a section 366.26 hearing (.26 hearing) for May 14, 2009. In its report for that hearing, the Bureau recommended that both Mothers and Fathers parental rights be terminated.

On March 25, 2009, Father filed a 388 petition based on the results of the DNA test, which showed he was D.J.s biological father. Father asked that the court declare him D.J.s presumed father, and evaluate his mothers home for possible placement.

The Bureau strongly oppose[d] elevating Fathers status to presumed father. The Bureau noted that Father had admitted having no contact with D.J. during the first year of his life, and that it appeared Father had only occasional contact with the child until D.J. was detained following his injuries at the age of three years two months. The Bureau also noted that Mother and Father were not married and had not lived together, and there was no record Father had ever supported D.J. financially or emotionally and had no relationship with him. The Bureau also reported that D.J. was thriving in the home of his prospective adoptive parents.

The court set the hearing on the 388 petition at the same time as the .26 hearing.

At that hearing, Father testified that he was 16 and in high school when he began dating Mother. He ended the relationship when he found out Mother was pregnant and said that it probably wasnt mine. He had no contact with Mother before she gave birth to D.J. He found out about the birth through family members. Mother was living in either Vallejo or Richmond with Fathers cousin K. when D.J. was born, and some of Fathers relatives visited D.J. Father claimed he could not visit because he was living in Sacramento and didnt have a way to get out there. He was told D.J. looked like him and I got pictures and I told myself he was mine, yeah.

Father alleged in his 388 petition that Mother prevented him from having any contact with D.J. during the first year of his life. But Father did not testify to that effect at the hearing. Thus, Fathers allegation lacks evidentiary support.[2]

Father first saw D.J. at a family reunion, when he was about a year old. By then, Father would have been 17. Over the next two years―up until the time D.J. was hospitalized for the injuries at the age of three, when Father was 19 and an adult―Father saw the child about four times. He suggested that he and his family couldnt find D.J. because Mother was everywhere that I couldnt be because I was in Sacramento at the time and I was underage. When he heard D.J. had been beaten, he visited him in the hospital and stayed for about two days. He denied knowing that D.J. was being abused, and denied telling anybody at the hospital that he knew D.J. was being abused.

On cross-examination, Father admitted that neither he nor any of his family members took any legal steps to try to visit D.J. before he was injured. He admitted his family members knew where Mother was prior to D.J.s hospitalization, that he could have found Mother by contacting the family members, but he failed to do so.

Fathers grandmother, R.A., testified that K. told her that Mother was pregnant. K. said it could be Fathers baby. R.A. was told the baby looked like Father; R.A. relayed that information to Father. The family talked about DNA testing for Father, then 16, to determine if he was the father―but testing was never pursued.

At the time of D.J.s birth, Mother was living in Vallejo with K. R.A. saw D.J. seven or eight times during the first year of his life. When D.J. was maybe two, Mother moved away from K. and R.A. lost contact with Mother. The family knew Mother was living with K. during that two-year period, and had inconsistent but regular contact with D.J.―but Father took no steps to take responsibility for D.J.

The juvenile court found that Father does not meet the criteria to satisfy the requirements of a presumed father pursuant to Family Code section 7611. [T]he court finds that there is no relationship between this father and child. There does not appear to have been sufficient motivation during the first three years of this childs life for [Father] to come forward and act as the father, even though he and his family knew of the existence of the child from the time that the mother was carrying the child and up until the time that the child was given birth and then thereafter they did nothing to actually step forward and take responsibility for the child financially or emotionally. And nothing has been done, other than seeing the child at family gatherings to develop a relationship with the child. Accordingly, the court denied Fathers request for presumed father status.

The court denied the 388 petition on the ground that it was in D.J.s best interests to remain in his current placement: The child is truly, when you . . . look at the description of what has happened to this child in the past, truly the definition of a miracle. And he is growing physically, emotionally and socially. He is in a home with parents who love him. Theyre catering to all of his needs, and theyre meeting[] all of his current needs. He is in a place where he can now become stable with parents who love him very much.

The court terminated Fathers and Mothers parental rights and ordered a permanent plan of adoption.

II. DISCUSSION

Father contends the order terminating his parental rights is invalid because the juvenile court failed to find that he was a presumed father within the meaning of Kelsey S. As noted, Mother joins in Fathers argument, but raises no contentions on her own behalf. We disagree with Father for the reasons set forth below.[3]

Generally, the term presumed father is a creature of statute. Family Code section 7611 defines a presumed father in several ways, which generally involve: (1) the father and mother being married; (2) the father and mother having attempted to marry under certain conditions; or (3) the father having received the child into his home and openly held out the child as his natural child. None of the statutory definitions apply here.

But for constitutional reasons we need not discuss, the California Supreme Court expanded the definition of presumed father in Kelsey S. 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. . . . [W]hen the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother. (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted.)

In determining whether a father is a presumed father under Kelsey S., a trial court should consider all relevant factors: The fathers conduct both before and after the childs birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. (Kelsey S., supra, 1 Cal.4th at p. 849.) He must demonstrate his willingness to assume full custody of the child. Other factors include a public acknowledgement of paternity, payment of pregnancy and birth expenses if possible, and prompt legal action to seek custody. (Ibid.)[4]

The juvenile courts findings show that Father simply does not qualify for Kelsey S. presumed father status.[5] As the juvenile court found, he has no relationship with D.J. Although he originally thought the child was not his, he did not come forward and assume parental responsibilities, or even seek paternity testing, when he saw D.J.s picture and told [him]self D.J. was his son. He did not take steps to visit D.J. even though, by his own admission, his family knew where he was. He did not promptly come forward to demonstrate parental responsibilities, as required by Kelsey S. (See, e.g., Adoption of Michael H. (1995) 10 Cal.4th 1043, 1054−1055.) As the court found, he did nothing to take parental responsibility in any way for the first three years of D.J.s life. The fact that Father was underage for two of those three years does not, in and of itself, excuse him from the Kelsey S. requirements. (See In re Ariel H. (1999) 73 Cal.App.4th 70, 73−75.)

Father is not a presumed father under Kelsey S. The juvenile courts denial of presumed father status was correct. The 388 petition, based on Fathers Kelsey S. argument, was properly denied―especially given that it was in the childs best interests to remain in the care of his prospective adoptive parents.

III. DISPOSITION

The order terminating Fathers and Mothers parental rights is affirmed.[6]

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Dondero, J.

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[1] Subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] In fact, D.J.s counsel asked Father on cross-examination: Is it your position that [Mother], between the time of [D.J.s] birth and his injuries, was keeping [D.J.] from you personally? Father responded: Im not sure. All I know is I was younger. I was young. (Italics added.)

[3] The dependency proceedings below also included two children Mother had with A.W., M.W. and D.W. Because Mother raised no challenge to the juvenile courts orders regarding these two children, we dismissed this appeal with respect to them.

[4] The rule of Kelsey S. applies to dependency cases, as well as adoption proceedings. (See In re Zacharia D. (1993) 6 Cal.4th 435, 449−451.)

[5] The juvenile courts factual findings track a Kelsey S. analysis, even though the parties did not fully frame the Kelsey S. issue for the court.

[6] Mothers request for judicial notice is denied.