Vanji R. Unruh, for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 15CEJ300014-2)
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Leanne L. LeMon, Commissioner. Vanji R. Unruh, for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Peña, J. and Smith, J.
Petitioner, Roy N., is the biological father of now seven-month-old Jessica N. Following a contested dispositional hearing, the juvenile court found petitioner failed to meet his burden of proof under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) that he qualified as Jessica's presumed father, denied him reunification services under Welfare and Institutions Code section 361.5, subdivision (a) and set a section 366.26 hearing for May 8, 2018. Petitioner filed an extraordinary writ petition (Cal. Rules of Court, rules 8.450-8.452), seeking a stay of the section 366.26 hearing and an extraordinary writ directing the juvenile court to deem him Jessica's presumed father and order reunification services. We deny the petition and request for a stay.
Statutory references are to the Welfare and Institutions Code unless otherwise noted.
PROCEDURAL AND FACTUAL SUMMARY
Jessica was born in September 2017 with a positive toxicology for methamphetamine. Her mother, K.P. (mother), disclosed an approximate 10-year history of methamphetamine use. Mother's drug abuse resulted in the loss of another child in 2015. Mother was provided reunification services but failed to reunify and the child's father was granted sole legal and physical custody. Mother initially surrendered Jessica to the Fresno County Department of Social Services (department) but then changed her mind and asked for her back. The department retained custody of Jessica and placed her in foster care.
Mother initially identified petitioner and Ricardo H. as possible fathers but was confident that petitioner was Jessica's father. She said petitioner was incarcerated and had been for the past month. She explained she had engaged in relationships with both men for years and resumed her relationship with Ricardo when petitioner was incarcerated. Ricardo was not present when Jessica was born and he and mother did not have regular contact during the pregnancy.
Ricardo denied currently being in a relationship with mother but was involved with her around the time of her pregnancy. He prepared for the baby and had baby supplies because mother initially told him the baby was his. She subsequently told him something different. Mother did not tell him when the baby was born and he found out through his sister, who said the baby looked like him.
Petitioner identified himself as mother's boyfriend. He was aware mother had given birth and he held himself out to be the baby's father. Petitioner denied any drug use, but said he drank alcohol socially. He wanted the opportunity to parent Jessica and believed himself capable of doing so once he was released from jail.
The juvenile court ordered Jessica detained pursuant to a dependency petition filed by the department, alleging mother's substance abuse and neglect of Jessica's sibling placed Jessica at a substantial risk of harm. (§ 300, subds. (b)(1) & (j).) The court also ordered petitioner and Ricardo to submit to paternity testing and found the allegations in the petition true after mother submitted on the petition. The court set the dispositional hearing for early December 2017.
Meanwhile, social worker Brittanney McCain met with petitioner at the county jail and informed him he was Jessica's biological father. Petitioner said he knew mother was pregnant and admitted he used drugs in the past but never with mother. He said he had other children who were not in his care. He wanted placement of Jessica but did not know when he would be released from jail and he did not have any baby supplies.
In its report for the dispositional hearing, the department recommended the juvenile court deny mother reunification services under section 361.5, subdivision (b)(10) and (13) because of her failure to treat her drug abuse. The department also recommended the court deny petitioner reunification services under section 361.5, subdivision (a) because reunification services would not benefit Jessica.
Petitioner appeared with his attorney at the initial dispositional hearing and requested a contested hearing, which the juvenile court granted. Meanwhile, the department filed an addendum report further advising the court that petitioner had felony convictions for vehicle theft, evading peace officers and possession of a controlled substance for which he spent a significant amount of time in prison. McCain contacted petitioner's probation officer to ascertain whether he completed drug treatment as the court ordered in 2010. The probation officer stated he never enrolled. McCain also asked petitioner about relatives who might be able to take custody of Jessica. Petitioner said there were no relatives able to care for her at that time. His aunt was willing to let him live in her home with Jessica until he was able to find a home. However, he did not know when he would be released from jail. His criminal defense attorney told him he might be released on January 28, 2018.
The department also reported that petitioner had two supervised visits with Jessica in December 2017 at the jail through a glass partition and that he appeared happy to see her, though he could not hold her. He said she was a beautiful, healthy looking baby girl and looked like his older daughter. The department recommended against elevating petitioner to presumed father status and reiterated its recommendation the court deny him reunification services.
In January 2018, the juvenile court conducted the contested dispositional hearing. The parties presented their cases by argument only. Petitioner's attorney argued he qualified as Jessica's presumed father under Kelsey S. because he held her out as his own child and demonstrated his commitment to her by visiting her, requesting reunification services and attending all court hearings. His attorney further argued it was speculative to conclude that petitioner would be sentenced to prison as a result of his criminal proceedings.
The juvenile court denied petitioner's request for presumed father status, noting there was no evidence that he assisted mother with prenatal care, purchased anything for Jessica or held himself out as her father prior to her removal. The court also found reunification services would not benefit Jessica because of petitioner's criminal history and inability to parent other children who were not in his care. The court denied mother reunification services as recommended and set the section 366.26 hearing. This petition ensued.
Mother did not file a writ petition.
I. Presumed Father Status
For purposes of dependency law, only presumed fathers are entitled to reunification services. (§ 361.5, subd. (a).) A presumed father is a man who, whether or not he is the biological father of the child, satisfies any of the statutory presumptions of paternity (Fam. Code, § 7611) or, as relevant here, qualifies as a presumed father under Kelsey S.
Petitioner does not argue he qualifies as a presumed father under the Family Code. Since he and mother never married, the only presumption that applies would require him to show he received Jessica into his home and openly held her out as his natural child. (Fam. Code, § 7611, subd. (d).) Though he held Jessica out as his child, he was incarcerated and therefore unable to receive her into his home. --------
In Kelsey S., the Supreme Court held that Family Code section 7611 and the related dependency statutes violate an unwed father's federal constitutional guarantees of equal protection and due process to the extent they allow a mother or third person unilaterally to preclude the father from attaining presumed father status after he, upon learning of his paternity, promptly came forward and demonstrated a "full commitment to his parental responsibilities—emotional, financial and otherwise." (Kelsey S., supra, 1 Cal.4th at p. 849.)
In determining whether a biological father is a Kelsey S. father, the juvenile court "should consider all factors relevant to that determination. The father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental 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.' [Citation.] 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." (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted.)
Applying the principles of Kelsey S., petitioner asserts without further explanation that mother, Ricardo and the department's safe-surrender protocol combined to preclude him from attaining presumed father status. He also contends he made every effort possible as an incarcerated parent to demonstrate his commitment to Jessica and develop a relationship with her. He cites evidence he held Jessica out as his own child and requested paternity testing, visitation and placement with his family as soon as she was born. He also attended every court hearing.
When the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, the question on appeal is whether the evidence was sufficient, as a matter of law, to compel a finding in favor of the appellant. "Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Thus, in order to establish the juvenile court erred in finding he does not qualify as Jessica's presumed father, petitioner has to show that the undisputed facts compelled a finding in his favor as a matter of law. (Id. at pp. 1528-1529.)
Here, there is no evidence petitioner attempted to assist mother with the pregnancy or assume his parental responsibility for Jessica prior to her birth and was thwarted in his efforts by a third party. Rather, the only evidence to which petitioner can point occurred after Jessica's birth. We conclude such evidence does not compel a finding as a matter of law that petitioner qualifies as a presumed father under Kelsey S.
II. Reunification Services
A juvenile court has discretionary authority to order reunification services for a biological father who is not a presumed father "if the court determines that the services will benefit the child." (§ 361.5, subd. (a); Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) The juvenile court has broad discretion to determine what would benefit the child. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) We will not disturb the court's discretionary determination unless petitioner can show that it " ' "exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Petitioner contends the juvenile court erred in denying him reunification services because he had no criminal convictions that supported a denial of services under section 361.5, subdivision (b) and there was no evidence he failed to reunify with any of his children. In effect, he argues evidence to support a contrary decision. Our role, however, is not to determine whether there was evidence to support a contrary decision but whether there is evidence to support the decision the juvenile court made. There is. Jessica and petitioner do not have a parent/child bond and petitioner has a history of drug use and child welfare intervention. Jessica is an infant in need of a permanent home and petitioner was facing an uncertain criminal sentence. We find no abuse of discretion in the juvenile court's decision to deny petitioner reunification services and proceed to selecting a permanent plan for Jessica.
We deny petitioner's writ petition and request for a stay of the section 366.26 hearing.
The petition for extraordinary writ and request to stay the Welfare and Institutions Code section 366.26 hearing scheduled for May 8, 2018, are denied. This court's opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).