Opinion
H044588
01-19-2018
In re C.G., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. M.G., Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. JD019845)
The juvenile court made a presumed father finding under Family Code section 7611, subdivision (d) in favor of Steven, a family friend and father figure to C.G. since the child's birth. The mother of C.G. challenges that finding on procedural grounds and for insufficient evidence. Finding no prejudicial error in the manner in which the request for presumed father status was presented to the juvenile court, and finding substantial evidence to support the finding, we will affirm the judgment.
I. BACKGROUND
C.G. was born in 2008. A dependency action was initiated in 2009 after mother was arrested for being under the influence of PCP and endangering C.G. C.G. was released to his maternal grandparents, and the dependency matter concluded two years later with the maternal grandparents accepting legal guardianship of C.G. Paternity was not claimed by C.G.'s biological father, mother's husband Andrew, nor by Steven during those proceedings.
In December 2016 mother petitioned the juvenile court to have C.G. returned to her care. Mother's parents (C.G.'s guardians) supported that request, and both filed petitions to be relieved as C.G.'s guardians. The matter was set for a dependency mediation, and the social worker prepared a report recommending that C.G. return to mother's care with family maintenance services.
The anticipated custody change prompted Steven and Andrew to petition the court for presumptive father status. After both men appeared in the proceedings, the social worker interviewed Steven, mother, C.G., and C.G.'s guardians regarding their relationships with C.G. The social worker prepared an addendum report recommending that Steven be recognized as the presumed father.
The social worker's efforts to interview Andrew were unsuccessful.
During the same time frame, respondent was contacted by a mandated reporter with concerns that mother was caring for C.G. while she was intoxicated. That incident, which was documented in a second addendum to the social worker's report, prompted the grandparents to withdraw support for mother's custody request.
All parties appeared the following month (on March 1) at the hearing originally set to mediate C.G.'s return to mother. The grandparents requested counsel, and Steven and Andrew both made oral motions under Welfare and Institutions Code section 388 to be declared the presumed father. Steven explained that he was making the motion "out of an abundance of caution" given the posture of the proceedings, and that he was relying on the addenda reports to support his presumed father request. The court admitted the reports into evidence to the extent they supported the factual basis for Steven's request, and set the matter for a contested hearing.
At the hearing, Steven and Andrew both sought presumptive parent status under Family Code section 7611, subdivision (d), which requires a finding that "the presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." The social worker's reports were admitted into evidence, and the court received testimony from Steven, mother, and the maternal grandmother. The grandparents and C.G. supported Steven's request, and mother supported Andrew's request.
Andrew argued that both men should be designated presumed fathers.
The court ruled, "there is [no] question that [Steven] is the presumed father in this case. It is not just the preponderance of the evidence, it's a very strong case that they have, the current and long-standing relationship." It commented, "what is remarkable to me ... is how [mother] has gone out of her way to undermine the relationship with [Steven]. And it makes me wonder whether she is capable of really thinking about the best interest of her child, because it is so clear that [Steven] is an important -- the important person in this child's life." The court rejected mother's testimony as incredible, and denied the parentage request of Andrew, who was not present at the hearing.
A judgment was entered declaring Steven to be C.G.'s presumed father, and the hearing on mother's custody request was continued for the social worker to prepare a new recommendation. Mother has filed an appeal challenging the affirmative finding as to Steven.
II. DISCUSSION
"Any minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26 is within the jurisdiction of the juvenile court." (Welf. & Inst. Code, § 366.4, subd. (a).) Thus, the juvenile court "retains jurisdiction over the guardianship and any motions relating to that guardianship" even after dependency has terminated. (In re D.R. (2007) 155 Cal.App.4th 480, 486-487.) Here, even though C.G.'s dependency had terminated in 2011 with the appointment of the maternal grandparents as his guardians, the juvenile court retained jurisdiction to determine C.G.'s parentage under Welfare and Institutions Code section 366.4, subdivision (a), and the parties do not dispute that jurisdiction on appeal.
A. THE REQUEST FOR A PARENTAGE FINDING WAS PROPERLY BEFORE THE JUVENILE COURT
Mother argues that Steven's motion to establish paternity was deficient and resulted in "an improvident and prejudicial determination of paternity." In mother's view, the parentage request could only be made at this stage of proceedings under Welfare and Institutions Code section 388, which requires a verified statement of changed circumstances or new evidence submitted on a standard court form JV-180. (Welf. & Inst. Code, § 388, subd (a)(1); Cal. Rules of Court, rule 5.570(b).) She asserts that the motion was deficient because it was neither submitted on the standard form nor supported by changed circumstances or new evidence.
We do not read mother's primary authority, In re Zacharia D. (1993) 6 Cal.4th 435 (Zacharia D.), as requiring Steven's request for a finding of presumed parentage to necessarily conform to Welfare and Institutions Code section 388. The court in Zacharia D. described a hearing set in response to the biological father's blood test results to be "more along the lines of a hearing on a motion to modify under section 388," rather than an " '18-month hearing,' " as had been referred to by the parties in the juvenile court. (Zacharia D., at p. 442 & fn. 5.) Significantly, after receiving the blood test results, the juvenile court in Zacharia D. allowed the biological father "leave 'to file any motions with respect to determination of parenthood,' " and the biological father filed a complaint in the juvenile court to establish a parental relationship and obtain custody and visitation rights. (Id. at p. 442.) Zacharia D. does not hold that a party seeking status as a presumptive parent in the juvenile court must initiate the request under Welfare and Institutions Code section 388. While the court in Zacharia D. felt it important to clarify that the biological father was not before the court for an 18-month review hearing, it did not criticize the juvenile court's instruction to the biological father to file " 'any motions' " respecting a parentage determination or the biological father's request which was submitted in the form of a complaint.
Section 388, subdivision (a)(1) states in relevant part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court ... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and ... shall state the petitioner's relationship to or interest in the child ... and shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction." --------
Here we find no impropriety in the manner in which Steven presented his request to the juvenile court. The motion was formally made in the presence of all interested parties at the March 1 hearing. Mother was aware of Steven's request before that hearing, as she and others in her family had been interviewed by the social worker about Steven and Andrew. Mother, who was represented by counsel, did not object to the manner in which the request was presented to the court, either when it was made or five weeks later at the contested hearing. (See In re Z.K. (2011) 201 Cal.App.4th 51, 69 [rejecting argument that a non-custodial mother's failure to file a section 388 petition pending a permanency plan hearing under section 366.26 precluded her custody request when "everyone here proceeded as if a section 388 petition was unnecessary"].)
Mother also has not demonstrated prejudice because she has not shown how the form of the motion had an impact on the juvenile court's paternity finding. Even assuming changed circumstances are required for an alleged parent to seek presumed parent status during proceedings to terminate a post-dependency guardianship under Welfare and Institutions Code section 388, the requests to terminate the guardianship itself would themselves constitute that change.
We also find no abuse of discretion in the juvenile court's election to hear the paternity request before mother's custody request, as "we entrust the sequence of issues to the sound discretion of the trial court." (In re Jesusa V. (2004) 32 Cal.4th 588, 620.)
B. THE PARENTAGE FINDING IS SUPPORTED BY SUBSTANTIAL EVIDENCE
Mother argues there is insufficient evidence to support a presumption of parentage under Family Code section 7611, subdivision (d) because Steven did not assert paternity earlier in C.G.'s life, he was never C.G.'s primary or exclusive caregiver, and the evidence that he received C.G. into his home was "extremely thin."
We review the juvenile court's finding of presumptive parent status for substantial evidence. (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 780.) "We view the evidence in the light most favorable to the ruling, giving it the benefit of every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] We defer to the trial court's credibility resolutions and do not reweigh the evidence. [Citation.]." (Ibid.). The evidence supports the court's finding under this standard.
When interviewed by the social worker, C.G. referred to Steven as "dad," and said he sees his dad "all the time." The social worker reported that Steven is supportive of a relationship between C.G. and mother regardless of how he (Steven) is treated by mother, and that Steven has C.G.'s "best interest at heart." Steven lives and works in San Francisco, but he has regularly traveled to San Jose to see C.G., and he expressed concern that if mother is given custody of C.G., she will not allow C.G.'s relationship with Steven to continue. Steven reported that mother asked him to adopt C.G. when he was born, and he bonded with both mother's daughter M.M. (born in the early-1990s) and C.G. He felt he had promised mother and C.G. that they could depend on him, and that he has delivered on that promise.
M.M. related to the social worker that that she supported Steven's relationship with C.G. According to M.M., mother asked Steven to be a father figure to her and C.G., and Steven has done so. She said she has known Steven since she was four, and he is an important father figure to C.G. The grandparents, also supportive of Steven's request, reported that Steven is a stable, responsible man who has traveled to San Jose almost every weekend to be with C.G., and that Steven's entire family is connected with C.G.
Steven testified that has known mother since 1995, and when she became pregnant with C.G., he agreed to be there for C.G., help financially, and adopt him. He met C.G. in the hospital when he was born; he held C.G. out as his son to his family and friends; and his sister, parents, and aunts accepted C.G. as part of their family. C.G. has confided in Steven, has always called him dad or daddy, and considers himself part of Steven's family.
Steven spent every weekend after C.G. was born helping mother care for C.G., and he continued his relationship with C.G. after C.G. moved in with his maternal grandparents. Steven has taken C.G. on age-appropriate outings, helped C.G. with homework, taken C.G. to doctor's appointments, and disciplined C.G. Over the years Steven has paid for food, clothing, and gifts for C.G., and he has helped mother pay her bills. Steven explained that he had not sought presumed father status earlier because he did not know that status existed. He said, "I care about him like my own son. He is my son. And whether the Court decides he's my son or not, he will always be my son."
The maternal grandmother testified that Steven has been in mother's life since M.M. was a little girl. She corroborated that Steven met C.G. in the hospital when he was born, that Steven's parents refer to C.G. as their grandson, that C.G. is considered part of Steven's family, and that Steven spent weekends with C.G. before the dependency action commenced in October 2009. For the past five or six years, Steven has visited C.G. every weekend, staying at the maternal grandparents' house Friday through Sunday night, and performing parenting duties. Steven would also visit during the week if he had a day off, and C.G. had been to Steven's house. She said Steven has always been there for mother and C.G., and until recently has given mother money. Steven has bought clothes for C.G., C.G. calls him "dad," and they have a father-son relationship. In the grandmother's view, C.G. needs a permanent father, and her 85-year-old husband is too elderly for that role.
The timing of Steven's request does not diminish the evidence supporting the presumed parent finding. In his grandparents' care, C.G.'s relationship with Steven was able to flourish without regard to Steven's legal status as a parent. Given C.G.'s aging grandparents, and the apparent risk to C.G.'s relationship with Steven if the guardianship were terminated, Steven acted promptly under the circumstances to assert his rights. (Cf. In re Jerry P. (2002) 95 Cal.App.4th 793, 812).
Nor does the fact that Steven was never a primary or exclusive caregiver detract from the substantial evidence here. What is important is that Steven has treated C.G. as though he were his own son by developing a parental relationship and taking on emotional and financial responsibilities. (In re Alexander P. (2016) 4 Cal.App.5th 475, 493.) And the requirement that Steven has received C.G. into his home has been met by the grandmother's testimony that C.G. has been to Steven's home in San Francisco and her testimony about Steven's parents and family welcoming C.G. as Steven's son. The evidence that C.G. has visited Steven's home and family was "sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship" even though the visits may not have been frequent or for extended periods. (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 374, disapproved on another ground in Reid v Google (2010) 50 Cal.4th 512, 532, fn. 7; In re Jerry P., supra, 95 Cal.App.4th at p. 812, fn. 63 ["[T]he statute does not require the child to reside in the father's home but only be 'received' into the home."].)
Finally, we recognize mother's desire to live with her husband and C.G. as a family, but that is not a basis for casting aside the hugely important relationship C.G. has developed with Steven. A young boy can never have too many caring adults in his life, and Steven's relationship with C.G. will not prevent mother from providing her own loving home for her son.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Elia, Acting P. J. /s/_________ Premo, J.