Opinion
A151744
02-22-2018
In re JACKSON B., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. JACKSON B., Minor and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-00995)
Minor Jackson B., through his counsel, appeals from the juvenile court's decision to recognize his mother's boyfriend as his presumed father and to order reunification services for the boyfriend. Jackson is now almost five years old. His counsel contends the court erred because the boyfriend did not meet the statutory requirements for presumed father status and there was not sufficient evidence that ordering services for him was in minor's best interests. We affirm the court's orders.
BACKGROUND
I.
The Initiation of the Dependency Proceedings Regarding Jackson
On October 28, 2016, the Bureau filed a petition under Welfare and Institutions Code section 300 regarding Jackson. The Bureau alleged he was approximately three and a half years old, the son of Katie B. and Kenneth D., and that Katie had placed Jackson at substantial risk of harm by allowing her boyfriend, Jeffrey C., to operate a vehicle while under the influence of multiple substances with Jackson in the car. The Bureau also contended, among other things, that Katie had a chronic substance abuse problem that interfered with her ability to parent Jackson. She had admitted recently using heroin intravenously in his presence, which use led to her loss of consciousness and need for medical attention. At the subsequent jurisdiction hearing, Katie pleaded no contest to these allegations and the court found them to be true. The court subsequently ordered reunification services for Katie, who entered a residential substance abuse facility. Kenneth did not appear in the case and no one contended that he played a role in Jackson's care.
For the sake of anonymity and simplicity, we will refer to Jackson, Katie, Kenneth and Jeffrey by their first names only. We mean no disrespect in doing so.
In a detention/jurisdiction report, the Department reported that on October 26, 2016, police had been called to a parking lot, where they found Jackson in the backseat of a car, Katie slumped over in the passenger seat with a syringe in her arm and Jeffrey in the driver's seat under the influence of a stimulant and anti-depressant. Katie was revived with the administration of an opiate counter drug. Jeffrey admitted to using cocaine, methamphetamine and methadone in the previous 24-hour period. Katie and Jeffrey were arrested and Jackson was taken into protective custody. The court ordered him detained and later placed him in Contra Costa County with his maternal grandparents, with whom he had lived for most of his young life.
II.
Jeffrey's Request for Presumed Father Status
In December 2016, Jeffrey filed a "Statement Regarding Parentage," using a standard JV-505 Judicial Council form. He asserted that he was Jackson's parent and requested presumed father status. He stated he had lived with Jackson from August 26, 2015, until October 27, 2016, had engaged with Jackson in "potty training, numbers, alphabet games and how to be a good person," and had given Jackson "clothes, food, toys [and] housing." Jeffrey wrote that Jackson called Jeffrey's parents "Grandma" and "Grandpa," and had at times stayed with them. Jeffrey also checked a box next to the form's statement, "I have told the following people that the child is mine" and hand wrote eight lines of people's names, including his "family," "co-workers" and over 20 individuals.
The court heard Jeffrey's request for presumed father status in multiple sessions. Prior to the hearing, the Bureau reported that Jeffrey had submitted to a "live scan" of his fingerprints as part of a background check. The results indicated a person with a similar name, presumably an "a.k.a." for Jeffrey, was convicted in 2004 of a felony, first degree burglary, for which he served a prison term. The Bureau also reported that Jeffrey was convicted of felony child cruelty for the October 26, 2016 incident with Jackson and, as a result, was in an inpatient treatment program.
At the hearing, the court indicated that in light of a recent appellate court decision, unidentified in the record, and the court's review of the record, it was inclined to grant Jeffrey's request. Jackson's counsel opposed the request. She distinguished the appellate case on the facts, questioned whether Jackson had lived with Jeffrey for the length of time represented by Jeffrey, and emphasized how Jackson had been endangered in the October 2016 incident.
A Bureau social worker testified that, according to Jackson's maternal grandfather, Jeffrey had "been in the picture" for about a year, living with Jackson a majority of that time. The social worker said Jeffrey and Jackson had "a strong relationship" and "positive interaction," Jackson called Jeffrey "daddy" and their visitation was going well. The two clearly had established a relationship before the Bureau became involved.
Jeffrey testified that he had worked at a construction company from November 2015 until the incident in October 2016 and had "provided pretty much everything I earned towards our family." He had lived with Jackson for a month at Katie's parents' house, then in a house in Antioch for about three months, and then at his mother's house, also in Antioch, for several months. He wanted presumed father status because he had "been taking care of Jackson" since he met Katie and had "grown to love him." Jackson had a relationship with Jeffrey's parents, whom, according to the social worker, Jackson had lived with for several months. Jeffrey further testified that he was released from prison in April 2015, getting some time off for good behavior from a 13-year sentence and some custody credits.
The court concluded that there was "a sufficient showing here, given the testimony of [the social worker], the description of Jackson's use of the word 'daddy' with [Jeffrey]. And although it was much shorter than his life span, the period of time he spent with [Katie] and [Jeffrey] are a pretty formative time in a toddler's life. So I am going to grant his request and give him presumed status."
The court stated they were "out of time," and that it had "grave concerns about a robbery conviction that resulted in a 13-year prison sentence." It scheduled a contested disposition hearing and asked the Bureau to try to learn more about the circumstances of Jeffrey's previous offense.
III.
The Court's Disposition Order Regarding Jeffrey
Prior to the June 2017 disposition hearing, the Bureau interviewed Jeffrey. It reported to the court that he said he had a generally positive childhood, but that his parents divorced when he was eight years old. He then alternated between his father's home in Alabama and his mother's home in Contra Costa County. He had contact with the California juvenile justice system and began using marijuana at age sixteen. At eighteen, he moved to Alabama and was gainfully employed for a time. At 20, he said, he visited California and went with a friend to the home of a man who had stolen marijuana and other items from the friend. Jeffrey held a firearm the friend gave him during the robbery. He was sent to prison for armed robbery where he started using heroin "as a coping mechanism" and injected it daily for about ten years. He "was not given the tools to combat such an addiction while in prison." While in prison, he, among other things, completed 52 units of college credits, attended Narcotics Anonymous meetings and worked in the kitchen for seven years. He had "issues" adjusting to life in prison, but " 'straightened out' " and was released early due to good behavior in 2015.
Jeffrey said upon his release from prison, he stopped using heroin until he met Katie in August 2015. He had a good paying job at a construction company and was able to provide financial support for Katie and Jackson. However, he "would use his extra income to buy heroin and as his use increased, so did his tolerance until he 'spiraled out of control.' "
The Bureau thought Jeffrey "express[ed] significant insight into the source of his addiction as well as recovery." He had not used heroin since December 2016, when he entered an inpatient treatment program. He was testing clean, participating in methadone treatment and taking medication for a diagnosed post-traumatic stress disorder that was a result of his prison experience. He said he had new insights into his addiction and that he wanted nothing to do with that lifestyle anymore. He also was participating in a variety of classes about domestic violence, parenting, anger management and substance abuse.
Jeffrey said his "primary goal" was "to reach a level of success where he [could] provide a safe and stable home for his family and hopefully enroll Jackson into private school." He chose in-patient treatment over prison time because he wanted to address the underlying issues of his substance abuse "and learn to make healthy and safe decisions for his own future and the future of his family." He wanted the opportunity to show that he was a good father to Jackson.
The Bureau reported that Jeffrey's parole officer thought Jeffrey was "doing very well" in his treatment program. The officer observed on a visit that Jeffrey had " 'really good' " and " 'positive' " interaction with Jackson.
The Bureau recommended reunification services for Jeffrey. Although his criminal history supported bypassing services, the Bureau wrote, "it appears [Jeffrey] has made significant progress making positive changes in his life and behavior."
At the June 2017 disposition hearing, the Bureau and Katie supported Jeffrey's request for services, and Jackson's counsel opposed it. The Bureau provided the court with a police report of Jeffrey's 2002 armed robbery offense and acknowledged that it was unquestionably a serious offense involving the use of guns that supported a bypass of services. Jackson's counsel noted that the report recounted different events than did Jeffrey, including that he and other perpetrators thought there would be cash in the apartment and that Jeffrey had racked a gun and held it to a person's head, held two people at gunpoint and helped to tie up victims with duct tape. Counsel also pointed to Jeffrey's continued drug use after prison. Also, counsel contended, Jeffrey had been involved in another post-prison incident, this one involving vehicle theft from an auto collision shop. There is no indication in the record that Jeffrey was charged regarding this matter.
The Bureau contended that Jeffrey had committed his previous offense when he was 21, served a prison sentence for it, was currently doing "very, very well" in a treatment program as a couple with Katie and had built a relationship with Jackson. Therefore, "it would make absolutely no sense to have services for the mom and not for [Jeffrey] since they are together and doing so well together as a couple."
The court was very concerned that Jeffrey had minimized his previous offense, which the court characterized as a "home invasion," in a way that showed a "complete lack of really accepting responsibility and acknowledging the past." Jeffrey spoke, stating that the crime was "severe," that he did not like to talk about it, that it happened when he "was a kid," and that "[s]ome guy ripped us up for marijuana. I went back with my friends and we took what we thought was ours and more. We shouldn't have done it. I learned from that." He also addressed his heroin addiction and the collision shop matter, contending he did not know a shop worker was stealing cars and selling them to people, including him.
At the conclusion of the hearing, the court stated, "I am regretting very much my decision on the presumed status. And had I had some of the information then that I have today . . . I am regretting that. [¶] Because I did . . . make his status presumed, quite frankly, I'm inclined to order services. [¶] But given this Bonnie and Clyde relationship here, I have a lot of concerns for Jackson's well-being. It is really troubling me. I don't see how services to [Jeffrey] hurt Jackson. It's really the Court's ruling on presumed status that ultimately may have impact for Jackson down the road." The court said it understood "wholly" Jackson's counsel's position and that "[i]n many respects, I share it." It nonetheless found it was "in the best interest of the child to order services to [Jeffrey]. I am concerned and I will be for as long as this case is before me." Addressing Jeffrey directly, the court repeated that it was "really troubled" that he "minimized" his previous crime because "[i]t was a lot more than just ripping off some marijuana." The court stated there was a basis for a bypass of services, but concluded it was in Jackson's best interest to order services.
Jackson's counsel filed a timely appeal from the court's orders granting father presumed father status and reunification services.
DISCUSSION
I.
Substantial Evidence Supports the Court's Order Granting Jeffrey
Presumed Father Status.
Jackson's counsel first argues the juvenile court erred for a number of reasons when it granted Jeffrey presumed father status regarding Jackson. We disagree.
A person is presumed to be the "natural parent" of a child if the person meets certain conditions, including the one relevant here—that "[t]he presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." (Fam. Code, § 7611, subd (d).) The proponent of the presumption has the burden of establishing that he received the child into his home and publicly acknowledged paternity. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)
A man does not need to be a child's biological father in order to be recognized as a presumed father. (In re Nicholas H. (2002) 28 Cal.4th 56, 63 (Nicholas H.).) Accordingly, the Legislature has defined a "natural parent" as used in the Family Code as "a nonadoptive parent established under [the Uniform Parentage Act], whether biologically related to the child or not." (Fam. Code, § 7601, subd. (a).) "[A] presumed parent need not be a biological parent [citation] and subdivision (d) of section 7611 does not require a presumed parent who is not a biological parent to pretend otherwise. [Citation.] What is required, rather, is that the presumed parent treat the child as though the child was his or her own by developing a parental relationship and taking on ' " ' "parental responsibilities—emotional, financial, and otherwise." ' " ' " (In re Alexander P. (2016) 4 Cal.App.5th 475, 493 (Alexander P.).)
We apply a substantial evidence standard of review to a court's determination about presumed father status. (In re M.C. (2011) 195 Cal.App.4th 197, 213, superseded by statute on other grounds as stated in Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 378.) " '[W]e review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. [Citation.] We do not reweigh the evidence but instead examine the whole record to determine whether a reasonable trier of fact could have found for the respondent.' " (Ibid.)
Jackson's counsel's primary argument is that Jeffrey failed to establish that he held Jackson out as his "natural child." Jeffrey contends that the term "natural child," undefined in the Family Code, is equivalent to "biological child" based on dictionary references. Counsel contends that there is nothing in the record to suggest that Jeffrey actually held Jackson out to be his biological son. Counsel argues that the Legislature, although it has indicated that a "natural parent" does not have to be a biological parent of a child, has not indicated a "natural child" does not have to be a biological child of a parent seeking presumed parent status. Further, counsel contends, "natural child" as used in section 7611, subdivision (d) means "biological child" and implies that a parent is therefore required to hold out a child as a biological child under that subdivision. This argument is unsustainable, as indicated in the case law Jackson's counsel discusses. (See Nicholas H., supra, 28 Cal.4th at p. 63 [in the absence of anyone raising a conflicting claim, the presumption under section 7611, subdivision (d) is not rebutted by evidence that the presumed father is not the child's biological father]; In re M.R. (2017) 7 Cal.App.5th 886, 900-901 [presumed father status possible under section 7611, subdivision (d) for a non-biological parent because this status "is based on the 'familial relationship between the man and the child, rather than any biological connection' "] (M.R.); Alexander P., supra, 4 Cal.App.5th at pp. 492-496 [Division One of this district affirming presumed father status for a stepfather married to the mother who had lived with and parented the child for 20 months].)
Jackson's counsel attempts to distinguish Jeffrey's familial relationship with Jackson from those discussed in Nicholas H., M.R. and Alexander P., emphasizing the comparatively shorter time Jeffrey lived with Jackson and was involved with Katie, and that he was not married to Katie. These distinctions, however, go to whether there is substantial evidence that Jeffrey acted as a parent towards Jackson, and Jackson's counsel makes no serious argument that Jeffrey did not. It is uncontested that Jeffrey lived with and provided for Katie and Jackson for about a year and built a solid, positive familial relationship with Jackson, who called him "daddy."
Jackson's counsel cites two cases that declined to recognize presumed father status to persons who never held out the child involved as their "natural child." In In re Jose C. (2010) 188 Cal.App.4th 147, the court concluded there was "not a scintilla of evidence" that a grandfather seeking presumed father status had ever openly and publicly " ' "acknowledge[ed] paternity." ' " (Id. at p. 162.) In In re Bryan D. (2012) 199 Cal.App.4th 127, the court found there was "no evidence that grandmother was openly holding [child] out as her son, rather than as her grandson." (Id. at p. 140.) Jackson's counsel contends these cases demonstrate that Alexander P. is wrong to the extent it holds that a person could qualify as a presumed father by merely holding out that he played the role of father, rather than that the child was "his natural/biological child" in the context of a marital commitment. This is incorrect. There is not any requirement that a person seeking presumed father status be in a marital relationship with the mother of a child (see, e.g., Nicholas H., supra, 28 Cal.4th at p. 60 [indicating the presumed father was not married to the mother of the child involved]), and Jose C. and Bryan D. involved circumstances where grandparents made no claim of parentage. These cases are inapposite because Jeffrey asserted on his JV-505 form that he had told dozens of people in every aspect of his life that "the child is mine," which can only be reasonably interpreted as meaning that he publicly and repeatedly represented that Jackson was his son.
Jackson's counsel makes an assortment of other contentions. Counsel questions whether Jeffrey really took parental responsibility for Jackson for the entire 13-month period claimed by Jeffrey and contends that the "scenario looks more like one where a man latches onto a mother and child and uses them to serve his own interests rather than one where a man provides a home for a child out of a commitment to the child." This, however, is merely inviting a reweighing of the evidence, which we shall not do under our deferential standard of review.
Jackson's counsel also contends that Jeffrey's drug use disqualifies him from presumed father status. Counsel correctly points out that at least one court determined that a man's repugnant behavior that was detrimental to the child justified denying him presumed father status. In In re T.R. (2005) 132 Cal.App.4th 1202 (T.R.), the appellate court affirmed a denial of presumed father status to a stepfather married to the mother of the three-year-old child involved. (Id. at p. 1208.) Unbeknownst to the mother, he was a registered sex offender who had served a prison term for three counts of lewd and lascivious conduct on a child under the age of 14, and had been seen molesting the child involved in the case. (Id. at pp. 1206-1207, 1211.) The court noted, "If an individual can qualify for presumed father status based on his good deeds consistent with parental responsibilities, it follows that under certain circumstances he can be disqualified by repugnant conduct that is detrimental to the child." (Id. at p. 1212.) The court affirmed the juvenile court's denial of presumed father status under section 7611, subdivision (d) because the stepfather's conduct was "antithetical to a parent's role and was a blatant violation of parental responsibilities. It more than counterbalanced the factors favoring . . . presumed father status." (Id. at p. 1211.)
As the Alexander P. court noted, T.R. does not " 'establish a bright line' test that would automatically disqualify a person from presumed parent status." (Alexander P., supra, 4 Cal.App.5th at pp. 495-496.) Rather, the case affirmed the trial court's ruling after the appellate court's review of the circumstances of the case before it, essentially finding substantial evidence to support the court's exercise of its discretion. (T.R., supra, 132 Cal.App.4th at p. 1212 ["there was substantial evidence to support the court's conclusion that the presumption had been rebutted . . . . The juvenile court acted well within its discretion . . . "].) Thus, the Alexander P. court concluded that the domestic violence committed by the stepfather did not disqualify him as a matter of law from obtaining presumed father status, but was just one factor the court should consider in evaluating his status. (Id. at p. 496.) Similarly, here, the trial court reviewed all of the circumstances—including Jeffrey's entry into an inpatient drug treatment program after the October 2016 incident—and concluded he was entitled to presumed father status. T.R. (which was not raised below) does not provide any basis for our reversal of the court's decision.
In short, Jackson's counsel does not give us any reason to disturb the trial court's determination that Jeffrey had assumed parental responsibility for Jackson sufficiently to be given presumed father status.
II.
Substantial Evidence Supports the Court's Order that Jeffrey be Provided
Reunification Services.
Jackson's counsel also argues the juvenile court erred in ordering reunification services for Jeffrey. We disagree with this claim as well.
Welfare and Institutions Code section 361.5, subdivision (a) requires the juvenile court order reunification services for presumed parents. Reunification services need not be provided, however, where the court finds by clear and convincing evidence "[t]hat the parent . . . of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code." (Welf. & Inst. Code, § 361.5, subd. (b)(12).) Further, a court "shall not order services" for a parent convicted of a violent felony (undoubtedly the case here) "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (Id., subd. (c)(2).)
"The concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well adjusted adult.' " (In re Ethan N. (2004) 122 Cal.App.4th 55, 66 (Ethan N.).) To achieve that purpose, a court may consider many things, including such factors as "a parent's current efforts and fitness," "the parent's history," "[t]he gravity of the problem that led to the dependency," the " 'strength of relative bonds between' the dependent child and 'both parents and caretakers,' " and, "after it is determined that reunification is no longer necessarily the objective," the child's "need for stability and continuity." (Id. at pp. 66-67.) Also, in order to find that reunification services are in a child's best interest, there must also be "some 'reasonable basis to conclude' that reunification is possible before services are offered to a parent who need not be provided them." (In re William B. (2008) 163 Cal.App.4th 1220, 1228-1229.)
"A juvenile court has broad discretion when determining whether . . . reunification services would be in the best interests of the child under section 361.5, subdivision (c)." (In re William B., supra, 163 Cal.App.4th at p. 1229.) We review the juvenile court's determination of Jackson's best interests under an abuse of discretion standard. (Ethan N., supra, 122 Cal.App.4th at pp. 64-65.) To the extent a party contends the court abused its discretion for lack of evidence to support its decision, we review the record for substantial evidence. (Id. at p. 64.)
Jackson's counsel contends that there is no indication the court knew about or followed the framework of evaluation established in Ethan N., and that the court's statement that it had "considerable regret" in giving Jeffrey presumed father status indicates its order of services was simply "damage control." Counsel further contends that Jeffrey's long-term drug problem and "considerable criminality," the limited time that he had bonded with Jackson and the likely stronger bond Jackson had formed with his maternal grandparents, and Jackson's need for permanence and stability as soon as possible establish that the court's order of services was an abuse of its discretion.
Again, Jackson's counsel is in effect asking us to reweigh the evidence, which we shall not do under our deferential standard of review. Substantial evidence supports the court's decision to order services. While Jeffrey had a long-term drug problem, he entered an inpatient treatment program and was performing very well months later, testing clean throughout his stay there. He had a prison record, but since his release from prison, there was no indication that he had engaged in criminal conduct other than the October 2016 incident and his admitted drug use, all of which was related to his addiction. Jackson's counsel makes much of the auto collision shop matter, but nothing in the record indicates Jeffrey engaged in criminal conduct regarding this matter. Jackson's counsel also ignores the evidence that Jeffrey was gainfully employed at a construction company continually from late 2015 to late 2016, demonstrating his potential to function as a providing parent to Jackson. And there was substantial evidence that Jeffrey had formed a solid emotional bond with Jackson over about a year's time. The court could reasonably find this was significant, along with Jeffrey's continuing commitment to Katie and Jackson as a family, regardless of any bond Jackson also had with Katie's parents.
Jackson's counsel also raises an incident in which Jeffrey and Katie took Jackson on a long walk to a school carnival that was not authorized by the Bureau, leading to Jackson reportedly saying it was a long walk and that his feet hurt. However, the treatment program director stated at the disposition hearing that she had approved the trip, rightly or wrongly, giving the court sufficient reason to dismiss the matter as insignificant in evaluating whether or not to order services for Jeffrey.
Finally, Jackson's counsel's contention that awarding Jeffrey reunification services for a time would so interfere with Jackson's need for permanence and stability as to be an abuse of discretion is unpersuasive in light of the above, and in light of the court's obvious concern about the case. It is clear that the court intended to closely monitor Jeffrey's conduct as the case continued. We see little merit in his contention that providing Jeffrey services will lead to a substantial delay in Jackson's needs being met.
Accordingly, we conclude substantial evidence supports the juvenile court's decision to order reunification services to Jeffrey. The court did not abuse its discretion in ordering them.
DISPOSITION
The orders appealed from are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.