Opinion
G059197
01-21-2021
In re M.T. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.T., Defendant and Appellant.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18DP0858 & 18DP0859) OPINION Appeal from a judgment of the Superior Court of Orange County, Antony C. Ufland, Judge. Affirmed. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
INTRODUCTION
An absent father with a history of domestic violence waits until the close of a juvenile dependency case to seek presumed status by marriage pursuant to Family Code section 7611 , subdivision (a). The dependency matter is initiated only because of concerns about the mother. Even though there is no dispute as to absent father's paternity, the juvenile court refuses to take judicial notice of his evidence and rules presumed status would not be in the best interest of the minors. Reunification with the mother is successful and she gets sole custody with absent father getting no visitation rights. Must the juvenile court revisit its ruling regarding presumed status?
All further statutory references are to the Family Code unless otherwise indicated.
We answer this question in the negative. While we believe the juvenile court's ruling in this case was erroneous, we nevertheless find it was harmless because the evidence in the record shows the absent father, appellant T.T., would not have received visitation rights even if he were deemed presumed. We therefore affirm.
FACTS
Brothers M.T. and T.T, ages 10 and 8 at the time, were taken from their mother, Jacqueline, into protective custody by the Orange County Social Services Agency (SSA) on August 8, 2018. On August 10, 2018, SSA petitioned the juvenile court to detain the children after receiving separate reports about Jacqueline's parenting behavior.
Jacqueline is not a party to this appeal.
The reasons behind their detention are irrelevant to this appeal and we do not delve into those details here.
SSA had first received a report about Jacqueline in June 2018. At the time, she was interviewed by a social worker and she reported appellant was the boys' biological father and they were divorced. But she said he had not had contact with the children in approximately five years. She stated she and appellant had domestic violence issues which had resulted in a restraining order. She further reported appellant had been the subject of a child abuse investigation when the family lived in Texas and Jacqueline ran an in-home daycare.
Both boys had apparently witnessed appellant being violent towards their mother. M.T. said he had seen appellant 'throw 'stuff'" at Jacqueline and T.T. said he had seen him push her.
SSA's review of online domestic violence records showed appellant was indeed the subject of two restraining orders, one expired and the other active until 2023. Appellant had been ordered to stay away from both Jacqueline and the boys. However, he was given four-hour supervised visits with the boys every Saturday, as well as Skype communications with them at any time, and unmonitored visits when they were in the hospital. Appellant was also ordered to complete a 52-week batterer intervention program.
We do not know whether appellant completed such a program.
At the time the boys were taken into custody, appellant's whereabouts were unknown, and he had not provided for the children at all in previous years. However, SSA was able to locate an e-mail address for him through the Child Support Enforcement National Database, which they later used to contact him.
The detention hearing took place on August 13, 2018. Jacqueline had advised her counsel that she and appellant were married from 2007 to 2017 and he was listed on the children's birth certificates. On this basis, counsel sought "presumed status for the father at this time." The court clarified: "They were married at the time of conception?" Counsel for Jacqueline replied: "They were." The court appeared to be leaning toward declaring appellant a presumed father when deputy county counsel asked that the "court defer paternity findings until" Jacqueline's statements about parentage could be confirmed. The court acceded to this suggestion, reserved the paternity issue pending production of birth certificates, and ordered reunification services. Notice of the hearing had not been sent to appellant, however, because no one had an address for him.
When Jacqueline's counsel indicated he did not have the birth certificates, the court asked whether Jacqueline was at least claiming appellant was listed on them. It was at this point deputy county counsel suggested deferring the issue.
On August 23, 2018, SSA was able to contact appellant via email. He responded, provided a phone number, and advised he was the boys' biological father. He explained he had moved in with family on Easter Island in Chile at some point after he and Jacqueline divorced and he worked full-time as a tour guide there. While he alone was financially unable to take care of the children, he claimed to have a lot of family support around him and he wanted one of his relatives to be considered for placement.
Appellant told the social worker about his stormy and violent relationship with Jacqueline, which he said lasted around six years. He confirmed there had been no contact between himself and the boys in approximately five years, stating Jacqueline had received full custody as of July 2017. He had little knowledge of their medical needs or medical histories, but he claimed to be listed as their father on their birth certificates. In September 2018, the court appointed appellant a public defender to represent him in the boys' case.
Jacqueline had told SSA that her divorce from appellant was finalized in July 2017.
On November 13, 2018, the court declared the children dependents. In the ensuing time, they had been placed in the care of their maternal aunt pending reunification services. Jacqueline seemingly applied herself diligently to swiftly reuniting with her sons, attending treatment and complying with her case plan.
In contrast, after his initial conversations with SSA, appellant did not involve himself in the proceedings aside from routine appearances by his appointed counsel at hearings. He did not seek a formal paternity determination, and he did not file a declaration of paternity. He did not submit a marriage certificate or birth certificates. He did nothing to contribute to or participate in the case plan. The court allowed appellant to engage in monitored written communications with the boys. He chose not to take advantage of that opportunity.
By April 2020, SSA had recommended terminating dependency jurisdiction and returning the boys to Jacqueline's sole custody, which is what the children wanted. SSA had still been unable to confirm appellant's precise location on Easter Island, and due to the COVID-19 pandemic, the court continued its scheduled April review hearing to June 2, 2020.
On June 2, 2020, the court held the six-month review hearing. With the impending termination of the case, appellant's counsel for the first time asserted he was a presumed father through marriage pursuant to section 7611, subdivision (a), and asked the court to take judicial notice of the restraining order and custody and visitation orders. The court declined, noting the document was illegible, not certified, and did not prove Jacqueline and appellant were married. In any event, the court was not receptive to appellant raising the issue two years into the case, right before its termination, having done nothing to participate in the case. All other counsel present objected. The boys' appointed counsel stated the children did not desire any contact with appellant.
The court ultimately denied the request for presumed status because it was not in the children's best interest. The children were returned to Jacqueline's sole custody. Appellant was not mentioned in the custody order, which gave him no visitation rights.
DISCUSSION
Appellant contends the juvenile court should have declared him a presumed father and he should have been given the same visitation rights afforded him by the restraining order. He seeks reversal of the juvenile court's ruling denying him presumed status and a revised custody order granting him those same visitation rights. Alternatively, he seeks a status review hearing under Welfare and Institutions Code section 364 in which he can seek visitation as a presumed parent.
I. Presumed Parent Ruling
The first question we must address is whether the juvenile court was correct in finding appellant should remain an "alleged" parent due to his failure to participate in the case and the court's concerns about compromising the interests of the children. We review the juvenile court's factual findings regarding appellant's presumed parent status for substantial evidence. (In re Alexander P. (2016) 4 Cal.App.5th 475, 492.) However, to the extent statutory interpretation is involved, our review is de novo. (In re M.Z. (2016) 5 Cal.App.5th 53, 64.)
"There are three types of fathers in juvenile dependency law: presumed, biological, and alleged. [Citation] A presumed father is a man who meets one or more specified criteria in section 7611. A biological father is a man whose paternity has been established, but who has not shown he is the child's presumed father. An alleged father . . . is a man who has not established biological paternity or presumed father status." (In re P.A. (2011) 198 Cal.App.4th 974, 979.) Because presumed status comes with the right "to appointed counsel, custody (if there is no finding of detriment) and reunification services," it "ranks highest" amongst the three. (Id. at p. 980.)
Section 7611 contains several bases on which a presumption in favor of natural parent status can arise. Subdivision (a) therein provides a presumption in which the party asserting it "and the child's natural mother are, or have been, married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated[.]" "One who claims he is entitled to presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement." (In re T.R. (2005) 132 Cal.App.4th 1202, 1210; see also In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652 [regarding the presumption under subdivision (d)].)
The juvenile court has a duty at the outset of a dependency case to make an inquiry into the "identity and address of all presumed or alleged fathers," including factors which might implicate the above statutory presumption. (See Welf. & Inst. Code, § 316.2, subd. (a)(2) & (7).) To that end, "[i]f, at any proceeding regarding the child, the issue of parentage is addressed by the court," it is required to take certain action to find out whether there has been a previous determination of parentage. (See Cal. Rules of Court, rule 5.635, subd. (d).) As part of its inquiry, the court is required to ascertain whether there has been a voluntary declaration of paternity or whether a prior court has made such a finding, including having the court clerk "prepare and transmit Parentage Inquiry - Juvenile (form JV-500) to the local child support agency requesting an inquiry regarding whether parentage has been established through any superior court order or judgment[.]" (Id. at subd. (d)(2).) Once that form has been returned, if any order or judgment is found, the juvenile court is required to take judicial notice of it. (Id. at subds. (d)(3) & (4).) If there is no prior determination, the juvenile court is obliged to "take appropriate steps" to make one itself. (Id. at subd. (e).) The alleged father and his counsel should be provided with Statement Regarding Parentage (Juvenile) (form JV-505) and it should be completed and returned. (Id. at subd. (e)(1).) The court can order testing or other procedures as necessary to make its determination, but it may also make its determination "based on the testimony, declarations, or statements of the alleged parents." (Id. at subds. (e)(2) & (3).)
Based on our review of the record, the juvenile court here did not follow this procedure. At SSA's suggestion, it deferred consideration of the parentage issue pending production of birth certificates, and then never again addressed it until the final hearing, even though Jacqueline had sought presumed status for appellant at the detention hearing. Because Jacqueline said she and appellant had already been through a marital dissolution - wherein issues of custody would have been resolved - the final custody orders in that case would presumably have constituted a prior determination of appellant's status as a father. Additionally, both SSA and the court were aware of the previous domestic violence restraining orders which permitted appellant visitation. Indeed, at the final hearing, appellant's counsel sought judicial notice of those orders and the court denied the request. This, in our view, was error given the mandate of the rules and statutes applicable to the subject.
Appellant raises another ground for finding error: the court weighed his actions and the children's best interest rather than applying the presumption itself. He contends there was sufficient evidence to show he and Jacqueline were married when the boys were born and no one had submitted clear and convincing evidence to rebut this.
We agree. "[T]he only predicate" for application of section 7611, subdivision (a)'s presumption "is birth during a valid marriage or within 300 days after the marriage is terminated." (Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 48.) Granted, meeting this threshold should have been a relatively easy task for appellant. He had merely to present evidence that he was married to Jacqueline when the children were born. Indeed, the trial court was open to finding appellant presumed so long as he produced birth certificates. It appointed appellant his own counsel, which should have facilitated his ability to bring forward this evidence. Yet over the course of nearly two years, appellant did not avail himself of this opportunity until the case was ready to terminate. Even then, he failed to present the evidence the trial court had been seeking all along - the children's birth certificates, or, at least, documentation confirming he and Jacqueline were indeed married.
Nonetheless, the juvenile court was mistaken in undertaking an analysis of the children's interest, and in taking appellant's actions into account when deciding whether the presumption applied. The statute allows consideration of neither.
Moreover, because the juvenile court could have used the testimony, declarations, or statements of Jacqueline and appellant in making its ruling, we see no basis for it to require production of the birth certificates or marriage certificate in order to find appellant the presumed father. There was no competing claim of parentage here, and all parties involved - the court included - seemed tacitly or expressly to concede that appellant was the father of the children. It was unnecessary for the juvenile court to require legal documentation in order to declare what everyone already knew to be true.
This is an important point because many of the cases decided under section 7611 involve competing claims of parentage. Most recently, Division One of the Second District Court of Appeal decided In re Christopher L. (2020) 56 Cal.App.5th 1172, involving an incarcerated absent father. The mother of the child at issue had moved in with another man prior to the child's birth. A marriage certificate was provided to the court. The appellate court ruled the father should have been accorded presumed status at that point. (Id. at p. 1184.)
II. Harmless or Prejudicial Error
But we need not reverse this judgment or order additional hearings. Where "[d]etermining prejudice" from a juvenile court's error "does not necessarily require 'a speculative inquiry into what might have occurred in an alternate universe,'" the error is subject to harmless error review. (See In re James F. (2008) 42 Cal.4th 901, 914-915, quoting United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150.) "Rather than categorically deeming errors of a certain type 'structural' and thus reversible per se, a reviewing court should first consider whether an error in dependency proceedings is amenable" to harmless error review. (Christopher L., supra, 56 Cal.App.5th at p. 1187.) We find the error in this case amenable to such a review.
"'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. [Citation.]"' (In re T.R., supra, 132 Cal.App.4th 1202, 1209.) 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).) On the other hand, due process for an alleged father requires only that he be given notice and an opportunity to appear and assert a position and attempt to change his paternity status, in accordance with procedures set out in section 316.2. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) He is not entitled to appointed counsel or to reunification services. (Ibid.)" (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120 (Kobe A.).)
Kobe A. is instructive. The case concerned two children, Kobe and his baby half-sister Joy, who were taken from their mother when she tested positive for cocaine after giving birth to Joy. The mother claimed Frederick was Kobe's father, and a different man, J.M., was Joy's father. Frederick had been incarcerated since shortly after Kobe's birth in 2001, and though the Los Angeles Department of Children and Family Services (DCFS) knew he was incarcerated, it claimed his whereabouts were unknown in the detention report. He was never served with the dependency petition or notice of the detention hearing. The mother told the court at the detention hearing she and Frederick had never been married and he was not on Kobe's birth certificate, but "no one else could be the child's father." (Kobe A., supra, 146 Cal.App.4th at pp. 1116-1117.) Nonetheless, the court concluded Frederick was merely alleged. (Id. at p. 1117.)
Eventually, reunification services for both the mother and J.M were terminated and the matter was set for a permanency planning hearing. Though he was sent notice of some hearings, Frederick was never sent a Form JV-505 and was seemingly never advised that he was not being represented at them.
In its report prior to the permanency planning hearing, DCFS noted Frederick had contacted the social worker and was writing letters to Kobe and Joy. (Kobe A., supra, 146 Cal.App.4th at p. 1118.) However, the children were doing well in their caregiver's home and the caregiver expressed a desire to adopt them. The court appointed counsel to represent Frederick at the permanency planning hearing and wanted to continue it to a later date. Frederick asked to continue the hearing to a date after his release from prison because he wanted to be able to appear and try to reunite with Kobe. (Id. at p. 1119.) As in this case, the court expressed concern about this prospect given the late stage of the proceedings. Frederick's appointed counsel indicated there were potential due process issues given the lack of proper notice of prior hearings. After Frederick failed to appear on three continued hearing dates, the court terminated his parental rights and selected adoption as Kobe's permanent plan.
The Court of Appeal agreed that Frederick had not been given adequate notice of his rights in the dependency proceeding. This was in large part because the court and DCFS had failed to comply with the requirements under Welfare and Institutions Code section 316.2 and California Rules of Court, rule 1413 (which is now rule 5.635). The appellate court was particularly concerned about DCFS' failure to provide Frederick with a Form JV-505 even though DCFS had sent him notices of hearing; it felt those notices did not provide the same information, especially about Frederick's ability to have legal counsel appointed to represent him. (Kobe A., supra, 146 Cal.App.4th at pp. 1121-1122.)
Nonetheless, the appellate court determined the error was harmless, stating: "'[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 miscarriage of justice."' (In re Jesusa V. (2004) 32 Cal.4th 588, 624.)" (Kobe A., supra, 146 Cal.App.4th at p. 1122.) In Frederick's case, the Court of Appeal decided the error was harmless because given his conviction of a violent felony and his lack of any relationship with Kobe, it was highly unlikely the trial court would have taken Kobe out of the stable environment provided by his pre-adoptive foster caregiver in order to place him with a father he did not know. (Id. at pp. 1123-1124.)
We believe the trial court's error in this case was similarly harmless. Like Frederick, there was never much doubt in anyone's mind that appellant was the children's father. But unlike Frederick, appellant was appointed counsel at the beginning of the case and from our review of the record, his counsel was notified of hearings. At least in a de facto sense, appellant was treated much like a presumed father. But it seems to us highly unlikely the court would have given appellant any visitation even if it had made a formal declaration to that effect. He had no real relationship with the children and knew little about them. They did not desire any contact with him. He lived in a remote area of the world, far from the mother to whom they were very close. As with Frederick, appellant's previous history of violence would surely have been a cause for concern for the court. Although he apparently had no criminal record, there is still an active domestic violence restraining order against him and the boys are protected by that order.
Conspicuous also is appellant's own conduct - or lack thereof - during the case. He showed no interest in parenting the boys. He admittedly had no contact with them in the five years prior to their detention. And when the court allowed him written visitation with the boys, he never contacted them. We see no reason why the court would grant him visitation in the final custody order if he had never used the visitation already granted him.
Appellant asserts the trial court's judgment herein leaves him in an even worse position than the domestic violence restraining order, which at least allowed him in-person and Skype visitation. But he was not making use of even those visitation rights.
Appellant also contends the trial court's ruling against presumed father status prejudices his ability to modify the final custody order. We must clarify as a baseline matter that the juvenile court did not terminate appellant's parental rights and nothing precludes him from seeking visitation in the future. The family court, not the juvenile court, is the proper forum for such relief. (See In re Chantal S. (1996) 13 Cal.4th 196, 201.) The juvenile court transmitted its final custody order to the family court.
This is especially appropriate in a case such as this, where a basis for the juvenile court's jurisdiction over the minors no longer exists. --------
As appellant recognizes, Welfare and Institutions Code section 302, subdivision (d), does not allow for modification of the juvenile court's custody order "unless the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child." Appellant fears this will be an uphill climb, citing the following language from In re Michael W. (1997) 54 Cal.App.4th 190: "we presume some prejudice from the simple fact that a family law court will naturally defer to a recent order of the dependency court concerning custody and visitation. . . . Since the orders made by a juvenile court at a section 364 hearing are necessarily made while dependency jurisdiction continues, it follows logically that a family law court would defer to those orders and hesitate to second-guess the juvenile court judge, at least absent something more than the ordinary showing of changed circumstances." (Id. at p. 196.)
While, as a practical matter, this observation may be true, we do not see why it should compel us to rule differently. The non-custodial parent in In re Michael W., supra, 54 Cal.App4th 190, had actually been exercising her visitation and seeking treatment for her mental health issues. At the termination hearing, she sought, but was denied, even the opportunity to present evidence to support her request for unmonitored visits, despite her doctor opining as to her readiness to have them. (Id. at pp. 195-196.) We have no similar record of effort from appellant herein. Should his future task in modifying the custody order prove more difficult as a result, the juvenile court is not the culpable party.
DISPOSITION
The ruling and judgment of the trial court are affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.