In re M.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREEMay 26, 2017
A147681 (Cal. Ct. App. May. 26, 2017)

A147681 A148599

05-26-2017

In re M.B., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. K.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. JV84527)

This is an appeal from the juvenile court's jurisdictional findings and dispositional order in dependency proceedings involving minor M.B. (minor) and his biological father, appellant K.L. (father). The sole contention raised by father is that the juvenile court erred in finding that he does not qualify as the "presumed parent" of minor within the meaning of Family Code section 7611, subdivision (d). Based upon this finding, the court then ordered that he was not entitled to reunification services pursuant to Welfare and Institutions Code section 361.5, and that his relatives would not be considered for minor's placement. We affirm.

Mother is not a party to this appeal and, as such, is mentioned only in passing.

FACTUAL AND PROCEDURAL BACKGROUND

On July 7, 2015, the San Mateo County Human Services Agency (the agency) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (e) and (i), alleging, among other things, that minor, born in May 2014, had suffered serious physical harm inflicted nonaccidentally or as a result of parents' failure or inability to adequately supervise or protect minor; was under age five and had suffered severe physical abuse by father; and had been subjected to one or more acts of cruelty by father (hereinafter, petition).

Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code. --------

More specifically, the petition alleged that, on June 30, 2015, minor was treated for second-degree burns to his face and other parts of his body (totalling five percent of his body). Initially, mother reported that father had locked himself in the bathroom with minor while bathing him, and that she had heard minor crying. When father thereafter opened the door, he showed her the burns on minor's body. Later, mother changed her story and stated that she had been the one to bathe minor.

The petition further alleged that father initially told police that he had bathed minor and, afterward, minor had crawled under the faucet, which was stuck and leaking hot water, causing the burns. After confirming the faucet was not stuck, as father had reported, police arrested father for torture, mayhem and felony child abuse.

It was also alleged in the petition that minor's treating physician advised Samantha Esver, the Emergency Response Social Worker, that minor had a deep grease burn near his armpit that was approximately three days older than the burns on his face. Mother reported that father had told her minor was burned when he got too close to the stove, where food was frying. Minor had also sustained a laceration to his forehead, which father had told her occurred when minor ran into a corner. The treating physician, Dr. Jeffrey DeWeese, opined that minor's injuries were nonaccidental, and advised Esver that he was concerned that father had abused minor and that mother was unable to protect him.

A detention hearing was held July 8, 2015. The agency filed a report in anticipation of this hearing stating that father had initially been charged with torture, mayhem and felony child abuse, and that his bail had been set at nearly a million dollars. Further, paternity had not yet been determined. The juvenile court found at the conclusion of the hearing that the agency had made a prima facie showing that minor came within the identified subdivisions of section 300, and that his removal was necessary for his safety and well-being. The court then set a jurisdictional hearing for August 19, 2015. Minor was placed in a foster home for medically fragile youth and, on July 24, 2015, was advised by his physician to stay indoors and not to travel to visit father, who was incarcerated several hours away.

In anticipation of this hearing, the agency prepared another report in which the social worker noted that it appeared father held minor out as his child, but that he had not had much involvement with minor due to "issues" with mother. Father had indicated that the maternal grandmother and mother had prevented him from seeing minor at the time of his birth. Father acknowledged, however, that he had only begun involving himself in minor's life after his friends began teasing him for spending more time with his daughter from another relationship than with minor. He also acknowledged telling mother to get an abortion upon first learning she was pregnant with minor, but mother refused. At the time of birth, father was 17 years old and mother was 16 years old. Father further disclosed that he had dropped out of high school at age 15 and was illiterate.

The report further stated that mother had told the social worker that, at most, father had minor overnight two times and did not provide him food or clothing. Thus, given father's minimal involvement in minor's life, the agency recommended that father remain the alleged father for the time being.

Minor's caregiver, in turn, had reported to the agency that minor, who had been in the home about one month, was terrified of men (including her husband), and cried when she tried to give him a bath.

The jurisdictional hearing was continued to September 14, 2015, at which time it was agreed that father, who was in custody and not present, would remain the alleged father and that reunification services would not be offered to him. A subsequent hearing was then set for October 28, 2015.

At the October 28 hearing, father's counsel sought a court determination that he was the presumed father. A paternity test thereafter confirmed father was the biological parent. The agency's addendum prepared for the hearing stated that father had declined counseling because he was not "a child abuser," and continued to deny responsibility for minor's burns. Father also stated that he did not want to appear in person at the hearing, but was willing to appear by video conference. This hearing was thereafter continued to January 5, 2016.

At the January 5 hearing, father moved to have his status elevated to presumed parent. Father's attorney filed a declaration in support of this motion, in which she attested that father was not present at minor's birth because the maternal grandmother prevented it. Father saw minor for the first time when he was one month-old, and then the second time for a two-night visit when minor was ten months-old. According to counsel's declaration, a month later, father paid for mother and minor to visit him overnight, which was followed by a visit with paternal grandmother in December 2014. In addition, father took minor to one medical appointment when he "was about one year old," and spent three days in June with him, one of which was an overnight visit at his sister's home. Finally, father's counsel attested that he had held minor "out as his son," had purchased him clothing, shoes, diapers, and provided him food during their visits. After considering this evidence and asking whether father intended to offer any further evidence (his attorney replied, "no"), the juvenile court denied the motion to elevate his status to presumed parent.

When the January 5 hearing continued, social worker Riza Alvarez, who had been assigned to the case for about six months, testified. Alvarez explained that, initially, none of the paternal relatives was considered for placement because father's paternity had not been established. In fact, father had himself initially questioned whether he was minor's father, and sought a paternity test for confirmation. Alvarez further testified that father had given three different explanations for minor's burn injuries, including that he had found minor with the injuries in the tub after looking around the house to try to find him, that mother was responsible for the burns, and that he had only tried to cover for her, and that minor had himself climbed in the tub after father briefly looked away while washing minor on the floor.

Minor's treating physician and child abuse and burn expert, Dr. Tricia Tayama, also testified, explaining that minor's most severe burn was "at the underside of the right jaw and the inner aspect of the right ear." Based on this injury pattern, Dr. Tayama testified that, "if you are envisioning water falling straight down from the faucet, the only way to get the most severe burn under the jaw is for the child to be inverted, or held down so that the hottest water is falling at this aspect of the burn." Dr. Tayama added that she "tried to envision many other scenarios of a child crawling in, looking up, reaching around, doing anything else, and I [could not] come up with any other way for the most severe burn to be on the underside of the jaw and for no other body part to be affected." As such, "any scenario that involves a child crawling into a tub doesn't match the burn pattern that I [saw]." "The only hypothesis I can come up with is the inversion. Therefore, my conclusion is this is most likely an inflicted injury."

Father's attorney thereafter argued on his behalf that it was reasonable to assume minor's burn injuries were accidental, but did not present any evidence to rebut Dr. Tayama's contrary testimony. The juvenile court expressly disagreed, and sustained the allegations in the petition under section 300, subdivisions (a), (b), (e) and (i). The juvenile court then agreed to continue the hearing on disposition until February 1, 2016, after noting that, because father was "nothing more" than the biological father, it would not consider visitation with him or placement of minor with any paternal relative. The court further noted that the only issue to be considered at the upcoming hearing was whether mother would be bypassed for services, at which point father stated that he would not attend.

At the April 11, 2016 dispositional hearing, which proceeded in father's absence, Alvarez testified that, among other things, father had made indirect threats of violence against mother. The agency had conducted a due diligence search for father after learning he had been released on bail, but had not located him. Minor's therapist since July 2015, Susan Farabee, testified that, during his initial foster care placement minor had shown a lot of fear towards men. Finally, psychologist Dr. Leslie Packer testified that minor feared adult males, and that mother "is a very dependent, submissive young woman who wanted her child to have a father in his life because she had never had a father in her life[, so] she trusted the father more than she should have in — in retrospect; we all know that now."

As the hearing concluded, the juvenile court stated: "The father injured [minor], that is clear to me." The court then added that father is "a toxic, evil person" and an "animal," before ordering that he would not receive reunification services under section 361.5, subdivisions (a), (b)(5), and (b)(6). Finally, the court ordered that there would be no physical contact or communication of any kind between father and minor.

Father thereafter filed timely notices of appeal of the juvenile court's January 5, 2016 jurisdictional finding that he was not minor's presumed father, and the April 11, 2016 dispositional order denying him reunification services.

DISCUSSION

Father raises one issue for our review — to wit, whether the juvenile court erred in finding that he was not minor's presumed father within the meaning of Family Code section 7611, subdivision (d) (hereinafter, section 7611(d)). According to this provision, a "person is presumed to be the natural parent of a child if the person meets the conditions . . . in any of the following subdivisions: [¶¶] . . . The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." (§ 7611(d).)

" 'A [man] who claims entitlement to presumed [father] status has the burden of establishing by a preponderance of the evidence the facts supporting [his] entitlement. [Citation.] . . . The Family Code section 7611(d) presumption, once it arises, 'may be rebutted in an appropriate action only by clear and convincing evidence.' [Citation], quoting [Fam. Code] § 7612, subd. (a).)" (E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1084-1085; see also In re T.R. (2005) 132 Cal.App.4th 1202, 1210 [the presumption arising under § 7611 is a " 'rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.' ([Fam. Code] § 7612, subd. (a).)"].)

"To be a presumed parent, a person does not have to be married to the other parent [citation] or registered as his or her domestic partner [citation]. A presumed parent need not have ever lived with the child's other parent [citation] and may not have even known the other parent [citation]. [¶] Nevertheless, a presumed parent is not just a casual friend of the other parent, or even a long-term boyfriend or girlfriend, but someone who has entered into a familial relationship with the child: someone who has demonstrated an abiding commitment to the child and the child's well-being, regardless of his or her relationship with the child's other parent. [Citations.]" (E.C. v. J.V., supra, 202 Cal.App.4th at p. 1085 [italics added].)

On appeal, "we review the evidence most favorably to the court's order — drawing every reasonable inference and resolving all conflicts in favor of the prevailing party — to determine if it is supported by substantial evidence. [Citation.] If it is, we affirm the order even if other evidence supports a contrary conclusion." (In re N.M. (2011) 197 Cal.App.4th 159, 168.) More specifically, under the substantial evidence standard, "we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." ' [Citation.] However, '[a] discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order. [Citations.]' [Citation.]" (E.C. v. J.V., supra, 202 Cal.App.4th at p. 1084.) The parent has the burden of showing there is insufficient evidence to support the order subject to challenge on appeal. (In re N.M., supra, 197 Cal.App.4th at p. 168.)

Here, we conclude the record contains sufficient evidence to support the juvenile court's finding that father did not meet the requirements for being deemed the presumed parent under section 7611(d). As noted above, the first required showing by a preponderance of the evidence under section 7611(d) is that the alleged presumed parent received the minor into his or her home. To this end, the parent need not establish that he or she has lived with the other parent and/or the minor, yet nonetheless must show that he or she undertook a firm commitment to assume the role of parent to the minor. (See In re Salvador M. (2003) 111 Cal.App.4th 1353, 1357; see also In re A.A. (2003) 114 Cal.App.4th 771, 786-787.) The relevant record supporting our aforementioned conclusion is as follows. While it does appear the mother and/or the maternal grandmother prevented father from attending minor's birth (as father points out), it is nonetheless true that father did not see minor until he was one month old. Father next saw minor when he was 10 months old for an overnight visit, and then saw him three or four other times before the fateful events at the heart of these proceedings - to wit, minor's suffering of second-degree burns inflicted nonaccidentally in June of 2015. Further, as father himself acknowledged, he only began to involve himself in minor's life after being teased by friends that he cared more for his daughter from a different relationship than for minor. On this record, the juvenile court could properly find father did not "receive [minor] into his home," as section 7611(d) requires. (See In re A.A., supra, 114 Cal.App.4th at pp. 786-787 [affirming trial court finding that father did not receive the child into his home where the evidence reflected that father "avoid[ed] the constant parental-type tasks that come with having the child in his own home—such as feeding and cleaning up after the minor, changing her clothing, bathing her, seeing to her naps, putting her to bed, taking her for outings, playing games with her, disciplining her, and otherwise focusing on the child," and failed to take "an interest in the minor's schooling, health, recreation, etc."].)

The second required showing is that the alleged presumed parent prove by a preponderance of the evidence that he or she held the minor out as his natural child. (§ 7611(d).) In other words, there must be evidence that the alleged presumed parent has demonstrated a commitment to the child and the child's welfare, such that a relationship has formed between the alleged parent and the child that is more important to the child than a mere biological relationship. (See In re Nicholas H. (2002) 28 Cal.4th 56, 65.) The following factors are relevant (albeit not necessarily dispositive): "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, 132 Cal.App.4th at p. 1211.) As this standard reflects, " 'In determining whether a biological father has demonstrated [parental] commitment, "[t]he 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 . . . .' [Citation.]" (In re E.T. (2013) 217 Cal.App.4th 426, 437.)

Returning to the record at hand, the evidence, much of which has already been mentioned, demonstrates that father advised mother to obtain an abortion upon first learning of her pregnancy with minor. Further, while the declaration of father's counsel states that father held minor out as his son and provided him at various times food, clothing and other personal items, mother informed the agency that he had provided no food or clothing for minor. The juvenile court was entitled to credit mother's statements and to discredit father's statements - a credibility determination we, in turn, leave to the lower court for purposes of this appeal. (In re N.M., supra, 197 Cal.App.4th at p. 168 [the appellate court must affirm the order so long as it is supported by substantial evidence, even if other evidence supports a contrary conclusion].)

Even more significant to our inquiry, undisputed expert testimony from minor's treating physician, Dr. Tayama, proved that minor's injury pattern was not consistent with accidental burning by a leaking faucet, but, rather, intentional abuse by his caregiver, to wit, father. Dr. Tayama's testimony in court accorded with statements made by minor's treating physician, Dr. Jeffrey DeWeese, to the agency shortly after minor sustained the second-degree burns (and set forth in the section 300 petition) that minor's injuries appeared nonaccidental. While father has denied, and continues to deny, that he inflicted minor's burns, he has presented no evidence to support his denials, despite having the burden of establishing by a preponderance of the evidence the facts supporting his entitlement to the section 7611(d) presumption. (E.C. v. J.V., supra, 202 Cal.App.4th at pp. 1084-1085.)

Finally, during these proceedings, father failed to provide updated information to the agency, and could not be located following his release on bail despite the agency's due-diligence efforts.

This showing more than equates to substantial evidence in support of the juvenile court's decision not to elevate father to presumed parent status. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451 [testimony from a single competent witness may constitute substantial evidence in support of the court's finding].) Accordingly, we conclude that father's challenge on appeal fails. As our colleagues in the Fourth District, Division One, aptly stated: "Paternity presumptions are driven not by biological paternity, but by the state's interest in the welfare of the child and the integrity of the family. [Citation.] A biological father can be a presumed father, but is not necessarily one; and a presumed father can be a biological father, but is not necessarily one. [Citation.] 'Presumed fatherhood, for purposes of dependency proceedings, denotes one who "promptly comes forward and demonstrates a full commitment to his parental responsibilities — emotional, financial, and otherwise[.]" ' [Citation.]" (In re T.R., supra, 132 Cal.App.4th at pp. 1209-1210.) Father in this case has clearly not met this standard.

Finally, given our conclusion that father is not minor's presumed parent, we need not address the court's related dispositional order to bypass him for reunification services (which is mentioned in the notice of appeal but not addressed in father's briefing). Undisputedly, a biological father may receive reunification services only if the court finds that granting him services would benefit the child. (§ 361.5, subd. (a).) Notwithstanding father's failure to present any reasoned argument as to why it would be in minor's best interests for him to receive services, the record in this case of the significant physical and mental abuse minor has suffered at father's hands forecloses any such finding. The juvenile court's dispositional order thus likewise stands.

DISPOSITION

The jurisdictional findings and order of January 5, 2016, and the order of April 11, 2016, denying reunification services to father are affirmed.

/s/_________

Jenkins, J. We concur: /s/_________
Pollak, Acting P. J. /s/_________
Siggins, J.