In re G.A.
Filed 7/23/12 In re G.A. CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
In re G.A., a Person Coming
Under the Juvenile Court Law.
B234918
Consolidated with B236794
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.G.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. CK76327)
APPEAL from
orders of the Superior Court
of
County, Terry Truong, Juvenile Court Referee. Affirmed.
Janice A.
Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel, and
Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
E.G.
appeals from two juvenile court’s orders denying two petitions for modification
he filed under Welfare and Institutions Code section 388,
three-year old G.A. We consolidated the
appeals and affirm the two orders.
FACTUAL BACKGROUND
1. Family
background
G.A. was
six months old in February 2009 when the Department
of Children and Family Services (the Department) detained her. Her biological mother M.M. reported to the
Department that the child’s biological father, D.K., died approximately eight
months earlier. Mother’s female
companion, Lucy A. F. told the Department that she signed G.A.’s birth
certificate as the “father” with the intention of becoming G.A.’s “ ‘legal
father.’ ”
title="">[2]
At the
detention hearing, the juvenile court inquired of M.M. and Lucy about
paternity. M.M. testified that she did
not believe D.K. was the biological father because his mother did a paternity
test. Lucy’s attorney confirmed that
Lucy was requesting presumed parent status and had filed a Judicial Council
form JV-505.
title="">[3] Lucy had lived
with the child since birth until detention, had provided for the child
financially, and had taken care of her on a daily basis. The court declared Lucy the presumed parent
of G.A. The court placed the child with
Lucy and ordered the two to live with the maternal great-grandmother.
The
Department filed a petition alleging M.M., who has a history of mental and
emotional problems, stabbed Lucy in the arm.
The juvenile court sustained the petition declaring G.A. a dependent
child described by section 300, subdivisions (a) [physical harm] and (b)
[neglect], and ordered reunification
services for M.M. and maintenance services for Lucy. On the front of the petition, the court noted
that D.K. was not the biological father.
Soon thereafter, the Department filed a subsequent petition (§ 342)
alleging domestic violence, only this time Lucy was the aggressor. On November 16,
2009, the court sustained the subsequent petition, placed G.A. in
the Department’s custody, and ordered reunification services for both parents.
On July 12, 2010, the juvenile court
terminated reunification services for M.M. and Lucy and set the permanent plan
hearing (§ 366.26).
On March 15, 2011, the juvenile court
appointed counsel to represent E.G.
after he received notice of an upcoming section 366.26 hearing. To explain how he learned of the dependency,
E.G. declared that in February 2011,
when G.A.’s caretaker refused him “any further visitation” with the child, he
went to the local Department offices and was first informed of the dependency
and of the permanent plan hearing. The
Department’s report indicates that E.G. contacted the social worker on March 11,
2011, not in February
2011, to state that he was the father.
When asked why he had not contacted the Department earlier, E.G. replied
that “he thought he had to go through the caregiver.” The Department gave E.G. notice of the
permanent plan hearing.
E.G. filed
a section 388 petition seeking custody of G.A.
He alleged that the caregiver agreed to a paternity test, but then
changed her mind. He asserted that M.M.
denied him fatherhood by telling him and others that the father was either D.K.
or the grandmother’s boyfriend. He asked
the court to give him custody of G.A. so he could raise her. In a five-page, single-spaced, handwritten
attachment, E.G. indicated that the caregiver’s boyfriend believed E.G. was the
father. E.G. stated that at the time the
child was born, he did not believe he was the father “based on [M.M’s]
relationship history . . . .” E.G. was willing to stop living a “bohemian”
lifestyle to set a good example for the child.
The juvenile court summarily denied the petition because the change
would not promote the best interest of the child.
2. The
first appeal (B234918)
E.G. filed
another section 388 petition for modification in April 2011. This petition requested the court (1) set
aside Lucy’s voluntary paternity declaration and the court’s earlier parentage
finding, and instead order E.G. to submit to genetic testing; and (2) to
recommence the entire dependency so he could gain custody of the child. As new evidence, E.G. explained that he had
uncovered information indicating the court was misled about the child’s
paternity. Because of the timing and
nature of his relationship with M.M., she was aware at the beginning of the
case of the possibility that E.G. was the father and always knew E.G.’s
whereabouts and telephone number. E.G.
stated he visited the child. He only
recently learned of the dependency and immediately came forward and identified
himself as the father. Finally, E.G.
asserted that it would be in the child’s best interest to know her father and
have her paternal relatives in her life.
In support
of the petition, E.G. declared that he had a sexual relationship with M.M. at
the time of G.A.’s conception, and that M.M. occasionally resided with him
during her pregnancy. E.G. acknowledged
that M.M. denied he was the father and did not permit him to attend the child’s
birth. Nonetheless, E.G. believed he may
be the father and since the birth, he has participated in visitation to the
extent permitted by M.M. and the caretakers.
He asserted he has provided the child with diapers, toys, clothing, food
and other items. Immediately upon first
learning of the dependency when he met the social worker in February 2011, he
filed a JV-505 form and his section 388 petition.
The
juvenile court granted E.G.’s request for a paternity test and set the section
388 petition for a hearing. The
paternity test confirmed that E.G. is the biological father. Meanwhile, the court awarded E.G. monitored
visits with the child a minimal of two hours per week. The child did not want to interact with E.G.
during the four visits they had, despite E.G.’s efforts and affection.
In advance
of the hearing on E.G.’s section 388 petition, the Department reported that E.G.
provided the Department with an address, but the Department of Public Social
Services listed him as homeless, i.e., “transient.” Although M.M. may have misled the court about
G.A.’s paternity, she also made comments to the effect that she had multiple
partners all of whom could have been the father. M.M. had sex with E.G. for money and
drugs. The Department did not believe
Lucy ever misled the Department or the court about paternity.
Numerous family members and friends
reported that E.G. knew about the dependency from its inception but did
nothing, other than to drive the caretaker to court once. He knew the family well enough to spend
Christmas with the caretakers. Because
he did not make himself known to the Department, he was not given notice of the
proceedings. M.M. repeatedly asserted
that E.G. was not the father and denied that he provided her with food, diapers
or anything the child really needed. The
Department expressed concern about E.G.’s motives because he maintained contact
with M.M. who was incarcerated in Louisiana.
Noting E.G. claimed to have had an ongoing sexual relationship with M.M.
around the time G.A. was conceived, the Department observed that at that time
M.M. was 16 and he was 39.
The juvenile court denied E.G.’s
petition concluding there was insufficient evidence to find him a
The court denied E.G.’s request to have the child placed with him. E.G. filed his first appeal from this order.
3.
The second appeal (B236794)
E.G. filed a third section 388 petition
requesting the court grant him status as a Kelsey
S. father and place the child in his custody. As new circumstances, E.G. averred that he
had taken advantage of all the visitation offered him and he was willing to
accept the child into his home but was being prevented from doing so. The change of order would be in G.A.’s best
interest, he stated, because he had established a relationship with the child
through visitation and the child would benefit if the relationship were
developed further. The court granted a
hearing on the petition.
In advance of this hearing, the
Department reported that although the child did not appear as fearful of, or as
tentative with E.G. as she had during initial visits, she continued to act out
negatively by hitting E.G., throwing things, and refusing to share her
activities with him.
At the hearing, E.G.’s attorney
requested that the juvenile court at least grant E.G. reunification services
because he had not been given an opportunity to participate in the case. After argument, the juvenile court denied
E.G.’s section 388 petition. The court
found that E.G. did not show that M.M. prevented him from having contact with
the child under Kelsey S. Nor had he demonstrated that he acted quickly
as possible when he learned of the dependency.
The court did not find it to be in the child’s best interest to grant
the petition. As E.G. did not rise to
the level of a presumed father, he could not compete with Lucy’s status as
presumed parent and was not entitled to reunification services. The court terminated the parental rights of
M.M. and Lucy, and E.G. appealed. We
consolidated the two appeals.
CONTENTIONS
E.G.
contends (1) the juvenile court erred in failing to make the required paternity
inquiry; (2) the failure to conduct a paternity inquiry is structural error;
and (3) even if the error were not structural, it was not harmless.
DISCUSSION
1. Fatherhood
in dependency proceedings
“ ‘Dependency
law recognizes three types of fathers: presumed, alleged and biological.’ [Citation.]
A biological father is one whose paternity of the child has been
established, but who has not established that he qualifies as the child’s
presumed father under Family Code section 7611.
[Citation.] ‘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.]” (In re
Kobe A. (2007) 146 Cal.App.4th 1113, 1120.)
“ ‘A
father’s status is significant in dependency cases because it determines the
extent to which the father may participate in the proceedings and the rights to
which he is
entitled. [Citation.] . . . Presumed
father status entitles the father to appointed counsel, custody (absent a
finding of detriment), and a reunification
plan. [Citations.]’ [Citation.] The court may
provide reunification services to a
biological father, if it determines that the provision of services will benefit
the child. (§ 361.5, subd. (a).)” (In re
Kobe A., supra, 146 Cal.App.4th
at p. 1120.)
“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 “is not entitled to appointed counsel or to
reunification services.
[Citation.]” (
“The
statutory procedure that protects these limited due process rights is set forth
in section 316.2.” (In re Paul H., supra, 111
Cal.App.4th at p. 760.) Section 316.2
requires the juvenile court at the detention hearing, or as soon thereafter as
practicable, to “inquire of the mother and any other appropriate person as to
the identity and address of all presumed
or alleged fathers.” (Italics
added.) The statute sets out the seven
minimum questions the court must ask.
directs, “If a person appears at a hearing in dependency
matter . . . and requests a judgment of parentage on form
JV-505, the court must determine: [¶] (1) Whether that
person is the biological parent of the child; and [¶] (2) Whether
that person is the presumed parent of the child, if that finding is
requested.” (Cal. Rules of Court,
rule 5.635(h)(1) & (2); see also In
re Paul H., supra, at p. 761.)
“The
procedures set forth in section 316.2, subdivision (b), and [former rule 5.635]
provide an alleged father with the notice to which he is entitled and the means
by which to ‘assert a position and attempt to change his paternity
status.’ [Citation.]” (In re
Paul H., supra, 111 Cal.App.4th
at p. 761, quoting In re O. S. (2002)
102 Cal.App.4th 1402, 1408.) Although
E.G. was not entitled to all of the constitutional and statutory rights of
biological or presumed fathers at the first hearing, he was entitled to the
opportunity to establish paternity that is afforded by these provisions. (In re
Paul H., at p. 761.)
Here,
although the court may not have asked M.M. all of the questions listed in
section 316.2 in 2009, the first time E.G. presented himself to the Department
in March 2011, he received notice of the proceedings and of the next hearing. While he was an alleged father only, the
juvenile court nonetheless appointed him counsel who filed a section 388
petition requesting a judgment of parentage.
The court continued the permanent plan hearing (§ 366.26), set E.G.’s
section 388 petition for a hearing, and ordered testing to determine whether
E.G. was the biological parent. (Cal.
Rules of Court, rule 5.635(h)(1) & (2); see also In re Paul H., supra, 111
Cal.App.4th at p. 761.) Thus, E.G.
received all of, if not more than, the constitutional and statutory rights
granted to an alleged father.
Once he was
determined to be the biological father, E.G.’s attorney filed another section
388 petition to elevate E.G.’s status to that of a presumed father. The juvenile court again postponed the
section 366.26 hearing to hear E.G.’s petition.
At the contested hearing on his petition, E.G. testified. The court admitted his evidence as well as
that of the Department. E.G. was
manifestly accorded all of the process to which he was due. That the court determined he was not a
presumed father was a matter within the juvenile court’s purview.
2. Sufficient
evidence supports the juvenile court’s finding that E.G. was not G.A.’s
presumed father.
Three
people here claim legal status as parents:
M.M. as biological mother, Lucy as statutorily presumed parent (Fam.
Code, § 7611, subds. (a) & (b)), and E.G. as either a statutorily presumed
father (Fam. Code, § 7611) or as the constitutional equivalent, a
that status.” (In re M.C. (2011) 195 Cal.App.4th 197, 222.) If no one is shown to be unfit as a
presumptive parent, then the juvenile court must engage in shifting
presumptions to establish which parent would retain the status. (Id.
at pp. 222-223.) However, here, the
court was not called on to weigh presumptions because E.G. never demonstrated
he qualified as statutorily presumed or a Kelsey
S. father so as to compete with Lucy’s status.
Section 388
allows a parent to petition the court for a hearing to modify or set aside any
previous order on the grounds of change of circumstance or new evidence, such
that the proposed change would be in the child’s best interest.
presumed father both under Family Code section 7611 and under
dependency context as a method for determining “whether the alleged father has
demonstrated a sufficient commitment to his parental responsibilities to be
afforded rights not afforded to
natural fathers ‑‑ the rights to reunification services
and custody of the child.” (
95 Cal.App.4th 793, 804.) Under
subdivision (d) of section 7611 of the Family Code, the man can establish
presumed fatherhood status if he “receives the child into his home and openly
holds out the child as his natural child.”
(Fam. Code, § 7611, subd. (d).)
[biological] father” presumptive paternity if he “promptly comes forward and
demonstrates a full commitment to his parental responsibilities -- emotional,
financial, and otherwise . . . .” (Kelsey
S., supra, 1 Cal.4th at p. 849.)
To determine whether the biological father has demonstrated such a
commitment, courts must consider “[t]he father’s conduct both before and after the child’s birth . . . . Once
the father knows or reasonably should know of the pregnancy, he must
responsibilities as fully as the mother will allow and his circumstances
permit. In particular, the father must
demonstrate ‘a willingness himself to assume full custody of the child ‑‑ not
merely to block adoption by others.’ ”
(Ibid., italics added.) “A court should also consider the father’s
public acknowledgement of paternity, payment of pregnancy and birth expenses
commensurate with his ability to do so, and prompt legal action to seek custody
of the child.” (Ibid., fn. omitted.)
Here,
E.G.’s conduct both before and after the child’s birth supports the juvenile
court’s conclusion that although he knew about the pregnancy, E.G. did not
promptly come forward to assume his parental responsibilities ‑‑ emotional,
financial, or otherwise. He never
received G.A. into his home or openly held the girl out as his own, natural
child. (Fam. Code, § 7611, subd. (d).) Instead, E.G. allowed Lucy to put her name on
the birth certificate and parent the child.
He sat back while Lucy developed a parental relationship with the child
and assumed financial support. The child
called Lucy, “Daddy Lucy.” By contrast
the child did not want to interact with E.G. during visits, and was fearful of
and tentative with him. Although E.G.
claimed he provided G.A. with diapers, toys, clothing, food, and other items,
M.M. denied this. E.G. did not even come
forward until two years after G.A. was detained and this dependency had
commenced. E.G. claimed he came forward
as soon as he heard about the dependency.
Yet, numerous family members and friends told the social worker that
E.G. knew about the dependency from its inception and did nothing until the
eleventh hour except drive the caretaker to the juvenile court once. Given E.G.’s claims to have visited G.A. at
the caretaker’s house as often as allowed, the court could easily conclude that
E.G.’s assertions of ignorance of the dependency were simply not credible. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52.) Even were E.G.’s assertions credible, he has
not demonstrated the “full commitment” envisioned by Kelsey S., supra, 1
Cal.4th at page 849.
The record
also supports the juvenile court’s finding E.G. did not demonstrate that M.M.
prevented him from having contact with the child or that Lucy misled the court
about E.G.’s paternity. (
[Fam. Code, § 7611 unconstitutional to extent statutes allow mother
presumed father].) Although E.G.’s
declarations allude to M.M. preventing him from attending the birth and
visiting the child, he gave no indication that she prevented him from publicly
holding the child out as his own; paying the hospital or doctor bills;
supplying the baby with food and clothing; or attempting to take care of the
child. (Id. at p. 849.)
Finally, E.G. did not present
evidence that it would be in the child’s best interest to grant him
custody. (§ 388.) Apart from E.G.’s homelessness and criminal
record, the evidence shows he has a limited relationship with the child and she
was quite reluctant to relate to him despite visits both before and after this
dependency commenced. In short, after
two hearings on the question, admission of evidence and taking of testimony,
E.G. did not demonstrate he qualified as a presumed father.
3.
Any error was harmless.
To bypass
this inevitable result, E.G. argues that the juvenile court’s error here was
structural mandating automatic reversal.
Pointing to the court’s failure to ask M.M. to identify any alleged or
presumed father other than D.K., or to conduct any further inquiry in an effort
to establish paternity after determining that D.K. was not G.A.’s biological
father, violated section 316.2 and was structural error. He argues repeatedly that “it is impossible
to know whether [E.G.] would have been identified had the juvenile court
complied with the inquiry requirement.”
E.G.
assumes that in responding to the juvenile court’s section 316.2 questions M.M.
would have divulged his name. This
inference is not supported by the record where M.M. has repeatedly insisted
that E.G. was not the father and otherwise admitted to having numerous sexual partners, all of whom
she believed could have been G.A.’s father. Accordingly, the court’s failure to comply
with the statutory requirements is not structural, but trial error because it
happened during the hearing. (
Cal.App.4th 535, 557.)
name="_ftnref8" title="">[8] Furthermore, the asserted error was not
structural because the failure to fully inquire of M.M. did not deprive E.G.
any process to which he was due.
More
important, “ ‘[w]e typically apply a harmless-error analysis when a
statutory mandate is disobeyed, except in a narrow category of circumstances
when we deem the error reversible per se.
This practice derives from article VI, section 13 of the California Constitution,
which provides: “No judgment shall be set aside, or new trial granted, in any
cause . . . for any error as to any matter of procedure,
unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a
(In re Kobe A.,
Kobe A. applied the
harmless-error analysis to the juvenile court’s failure to provide a father
with notice in accordance with section 316.2 and California Rules of
Court, former rule 5.635(h)(1) & (2).
(In re Kobe A.,
at p. 1122.)
Applying that analysis here, we
conclude any error was harmless. E.G.
received notice; was appointed counsel; and had three opportunities to be
heard, including not one but two hearings on his section 388 petitions, for
which the juvenile court postponed the permanent plan hearing (§ 366.26). E.G. was not “ ‘stripped of his right to
participate’ in the action.” (Cf.
901, 917.) “If the outcome of a
proceeding has not been affected, denial of a right to notice and a hearing may
be deemed harmless and reversal is not required. [Citation.]”
(Id. at p. 918.) The court’s failure here to inquire of M.M.
any further was a form of trial error that was amenable to the harmless error
analysis (id. at pp. 918-919;
harmless.
DISPOSITION
The
orders are affirmed.
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
further statutory references are to the Welfare and Institutions Code, unless
otherwise noted.
M.M. nor Lucy is a party to this appeal.
