Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; application for extraordinary writ, Merced Super. Ct. No. JV27973, Harry L. Jacobs, Commissioner.
Thomas M. Pfeiff for Petitioner.
No appearance for Respondent.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Real Party in Interest.
Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.
OPINION
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his son F. He contends the juvenile court erred in not granting him presumed father status and not offering him reunification services. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner is the biological father of F. who, in March 2009 at the age of two years, was removed, along with his two half siblings, from the custody of their mother D.R. by the Merced County Human Services Agency (agency) because of the unsafe and unsanitary condition of the home. The agency filed a dependency petition seeking the children’s removal and identifying petitioner as F.’s alleged father.
D.R. also filed a writ petition, which this court denied (F058146).
At the detention hearing, D.R. identified petitioner as F.’s biological father but stated she and petitioner were never married and petitioner did not sign a declaration of paternity or pay child support. Additionally, according to D.R., petitioner had been in and out of jail since F.’s birth and was then in prison. At the conclusion of the hearing, the juvenile court ordered the children detained pursuant to the petition and set the matter for jurisdiction.
In its jurisdictional report filed in April 2009, the agency provided additional information concerning petitioner’s paternity. Petitioner and D.R. lived together on and off during her pregnancy with F. but not after F.’s birth, and petitioner was not named as F.’s father on F.’s birth certificate. The agency also referenced a written statement provided by petitioner in which he stated his relationship with D.R. ended a few months after F.’s birth, and petitioner had not seen F. for a year and a half. The agency also detailed petitioner’s criminal history, which includes convictions in 2004 for sodomy and sexual battery, vandalism in 2006, and assault with a deadly weapon (not a firearm) in 2008 for which he was sentenced to two years in prison.
Petitioner appeared in custody at the jurisdictional hearing in April 2009 and the juvenile court appointed him an attorney. After counsel submitted the matter, the juvenile court adjudged the children dependents of the court and set the dispositional hearing for later that month.
The dispositional hearing was trailed and set for a contested hearing after the agency filed its report recommending the juvenile court deny both parents reunification services, petitioner because of his alleged father status.
The contested dispositional hearing was conducted in July 2009. Petitioner, by this time out of custody, appeared represented by counsel and sought reunification services either by elevating his paternity status to that of presumed father or persuading the court that reunification services would serve F.’s best interest.
Petitioner testified he occasionally stayed with D.R. while she was pregnant with F. but usually stayed with his mother. He did not sign a declaration of paternity because he was incarcerated. Upon his release, he requested a paternity test because he was not sure F. was his child. The paternity test established his biological paternity. After F. was born, he did not live with D.R.
Petitioner also testified he suffers from Attention Deficit Disorder and cannot read or spell. Consequently, he receives Social Security disability income and is not required to pay child support. However, he vowed to take care of F. and said he bought F. clothes and diapers and held him out as his son. He also took F. to his parents’ home a couple of times for two to three days to visit with his family. He also testified he would like to participate in reunification services and have custody of F.
On cross-examination, petitioner testified that after he took the paternity test, he was court-ordered into a drug treatment program because he was taking drugs and drinking. At the time, he was on felony probation. He also testified he had never been employed or lived in a home by himself.
At the conclusion of the dispositional hearing, the juvenile court found insufficient evidence to elevate petitioner to presumed father status and declined to exercise its discretion to nevertheless order petitioner reunification services. Additionally, the juvenile court denied D.R. reunification services and set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
Petitioner contends the juvenile court erred in not granting him presumed father status. On review, we apply the substantial evidence test. (In re A.A. (2003), 114 Cal.App.4th 771, 782.) In so doing, we view the evidence in the light most favorable to the juvenile court’s determination, drawing all reasonable inferences and resolving conflicts in the evidence in favor of the juvenile court’s finding. (Ibid.)
A presumed father is one who satisfies one of the rebuttable presumptions set forth in Family Code section 7611, generally by marrying or attempting to marry the child’s mother or by publicly acknowledging paternity and receiving the child into his home. (Fam. Code, § 7611, subd. (d).) In dependency proceedings, a presumed father, unlike a biological father, is entitled to reunification services. (§ 361.5, subd. (a).) Nevertheless, the juvenile court may order reunification services for a biological father if it determines services would benefit the child. (Ibid.)
Since petitioner did not marry or attempt to marry D.R., he could only attain presumed father status if he publicly acknowledged his paternity and received F. into his home. The parties do not dispute that petitioner acknowledged his paternity. Rather, the issue raised on this writ is whether petitioner received F. into his home. To that end, petitioner argues the overnight visits he had with F. at the home of his parents constituted sufficient evidence that he received F. into his home and warranted a finding of presumed father status. For that proposition, he relies on the holding in In re Richard M. (1975), 14 Cal.3d 783 (Richard M.).
In Richard M., the California Supreme Court addressed whether a father’s conduct with respect to his son was sufficient to legitimate his son pursuant to former Civil Code section 230, which required in part that he receive his son into his family. (Richard M., supra, 14 Cal.3d at p. 792.) The Richard M. court held that the presumption of fatherhood in that case was raised because it was undisputed that the mother and the child lived with the father for two to four weeks after the child’s birth. (Id. at p. 795.) In addition, the child generally spent every other weekend at his father’s home until his father remarried, when the visits were extended to three or four days and sometimes longer. (Id. at p. 795.)
Former Civil Code section 230, in pertinent part, read, “‘The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth.…’” (Richard M., supra, 14 Cal.3d at p. 787, fn. 1.)
“Because of the stigma and unfavorable legal treatment that attends classification of a child as illegitimate,” the Richard M. court explained, “California courts have almost consistently held that [former Civil Code section 230] must be liberally construed in favor of finding legitimation.” (Richard M., supra, 14 Cal.3d at p. 793.) In so doing, the court stated, “California courts have generally adopted an equally liberal interpretation of the concept of ‘receiving’ as used in the statute. This requirement is satisfied by evidence that the father accepted the child as his own, usually demonstrated by an actual physical acceptance of the child into the father’s home to the extent possible under the particular circumstances of the case. Thus the father receives the child into his family when he temporarily resides with the mother and child, even for a very brief period.… [¶] The statutory receipt requirement is also fulfilled by the father’s acceptance of the child into his home for occasional temporary visits.” (Id. at pp. 794-795.)
By its holding in Richard M., the Court seemed to suggest that physical presence in the father’s home may not be necessary and observed, “Nor have the courts been strict in insisting that the child be actually physically present in the father’s home; a constructive reception may suffice.” (Richard M., supra, 14 Cal.3d at p. 795.)
However, since Richard M., California’s Uniform Parentage Act abolished the concept of legitimacy and replaced it with the concept of parentage. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 828.) As a result, “the policy reason for straining to find legitimation by expanding the doctrine of constructive receipt is no longer present.” (Ibid.) In Kelsey S., the California Supreme Court rejected an unwed father’s contention that a man can constructively receive a child into his home within the meaning of Family Code section 7611. (Kelsey S., at pp. 825-830.) It subsequently held that to become a presumed father under Family Code section 7611, “a man who has neither married nor attempted to marry his child’s biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home.” (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.)
Applying the principles outlined above to these facts, we conclude petitioner did not physically receive F. into his home. Rather, he enjoyed two- to three-day visitations on a couple of occasions. Such limited contact is insufficient to satisfy the physical receipt requirement of Family Code section 7611.
Further, designation of presumed father status requires a greater paternal commitment than that demonstrated by petitioner on this record. (In re T.R. (2005), 132 Cal.App.4th 1202, 1210.) “‘The statutory purpose [of Family Code section 7611] is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.’ [Citation.]” (Id. at p. 1209.) “In determining whether a man has ‘receiv[ed a] child into his home and openly h[eld] out the child’ as his own ([Fam. Code,] § 7611, subd. (d)), courts have looked to such factors as whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental.” (In re T.R., supra, at p. 1211.)
In this case, petitioner only lived with D.R. off and on during her pregnancy, and he initially denied his paternity. After F.’s birth, petitioner only took F. to his home a couple of times for overnight visitation even though, according to his testimony, he lived close to D.R. Apparently, not long after, he was incarcerated, where he would spend much of the ensuing 18 months of F.’s life. Viewed from this perspective, petitioner does not exemplify the kind of commitment that would be required of a presumed father.
That said, it is clear that petitioner’s disability factored into his inability to financially provide for F. or to pursue any legal options or public benefits. Nevertheless, petitioner forfeited time he could have spent parenting F. by not visiting more frequently and by violating the law.
In light of the foregoing, we conclude substantial evidence supports the juvenile court’s finding petitioner is not F.’s presumed father and affirm its orders denying him reunification services and setting a section 366.26 hearing to implement a permanent plan.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.