In re H.A. CA2/3 ( 2023 )

Filed 4/6/23 In re H.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re H.A. et al., Persons Coming B319152
Under the Juvenile Court Law.
___________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 21CCJP05625B, C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ADRIAN P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mary Kelly, Judge. Affirmed in part and
reversed in part with directions.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Office of the County Counsel, Dawyn Harrison, County
Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S.
Mitchell, Senior Deputy County Counsel, for Plaintiff and
Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Adrian P. (father) appeals from a disposition order
concerning his children H.A. (born in May 2019) and Princess R.
(born in December 2021). He contends the juvenile court erred in
denying him presumed father status pursuant to Family Code1
section 7611, subdivision (d), and the Los Angeles County
Department of Children and Family Services (DCFS) failed to
adequately investigate the children’s possible Indian ancestry as
required by California law implementing the Indian Child
Welfare Act (ICWA) (Welf. & Inst. Code, § 224 et seq.). We
conclude that father is entitled to presumed father status as to
both children, and the ICWA issue is moot because the juvenile
court has already ordered DCFS to conduct a further ICWA
inquiry. We therefore will direct the juvenile court to amend the
disposition order to give father presumed father status as to both
children, and we will affirm the disposition order as amended.
1 All subsequent undesignated statutory references are to
the Family Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Background.
Nancy A. (mother) and father are the parents of H. and
Princess.2 Mother gave birth to Princess at home in early
December 2021. Princess and mother were transported to the
hospital, where both tested positive for amphetamines and
methamphetamines. Mother said she had found out she was
pregnant just three months before giving birth and had not had
any prenatal care. She admitted smoking methamphetamine
four days before Princess was born, but otherwise denied using
methamphetamines during the prior five years.
Mother said she and father had been together for 15 years,
and he was H.’s and Princess’s father. Father had not been at
the hospital after Princess’s birth because he was not vaccinated
against Covid-19, but he had visited virtually with mother and
Princess.
Father contacted DCFS two days after Princess’s birth. He
said he had lost his parental rights to an older child and did not
want to go through that again. He was not certain whether he
could care for Princess, but he said he would talk to paternal
grandmother about helping him.
The parents gave inconsistent reports about where they
were living immediately prior to Princess’s birth. Mother said
she, father, and H. lived with maternal grandmother, father’s
sister, and mother’s two brothers. Father initially said he was
living with friends; he later clarified that he and mother wanted
2 The children’s half-sibling, Jaiden, who has a different
father, is not a subject of this appeal.
3
to live together, but the maternal grandmother had “issues” with
him and so he would “sneak in the house.”
The paternal grandmother said she had found out about
mother’s pregnancy three months earlier and had offered to take
mother to the doctor. Father’s belongings were at the paternal
grandmother’s house, but father was “a wanderer.”
II. Petition and detention.
On December 10, 2021, DCFS filed a petition pursuant to
Welfare and Institutions Code section 300, subdivisions (b)(1) and
(j) alleging that H. and Princess were at substantial risk of
serious physical harm because Princess tested positive for
amphetamines and methamphetamines at birth (count b-1);
mother had a history of substance abuse, used
methamphetamines during her pregnancy with Princess, and had
a positive toxicology screen for amphetamines and
methamphetamines the day of Princess’s birth (count b-2); and
father had a history of substance abuse and a criminal history,
including convictions for driving under the influence and
possession of a controlled substance, and had failed to protect the
children from mother’s substance abuse (counts b-3, j-1).
Both parents appeared remotely at the December 16, 2021
detention hearing and requested that the children be released to
them. The same day, mother submitted Parentage
Questionnaires in which she stated that father was H.’s and
Princess’s father; he had not been present at the birth of either
child; he had signed Princess’s birth certificate, but not H.’s; the
parents were unmarried but had been living together at the time
of the children’s conception and birth; father had held himself out
as the father of both children; and father had lived with mother
and H. since H.’s birth and had helped to support H. financially.
4
Father submitted a Statement Regarding Parentage (JV-505) in
which he stated that he believed he was the children’s father, had
held himself out as the children’s father to family and friends,
had lived with the children from their birth until “recently,” had
participated in “all parental activities,” and had supported the
children financially. He requested that the court enter a
judgment of parentage as to both children.3
The juvenile court detained the children from both parents,
finding that the children would be at substantial risk of harm in
the parents’ custody. As to father’s status in the proceedings, the
court said that because father “sign[ed] the birth certificate,”
there was a rebuttable presumption that he was the presumed
father. No party objected, and the court therefore designated
father the presumed father of both children.
III. Jurisdiction and disposition.
In January 2022, mother told a children’s social worker
that she and father had known each other 15 years and had been
high school sweethearts. They took a break from their
relationship when father went to jail five or six years earlier, but
had been in a committed relationship since H. was born. Before
the children were detained, father had gone “back and forth
between” mother’s home and the paternal grandmother’s home,
but he had moved in with mother after the children were
detained to support her.
Father said he had been in mother’s life for 15 years. He
had not been living with mother when the children were detained
3 The parentage forms were unsigned, presumably because
the detention hearing took place remotely.
5
because her mother (the maternal grandmother) “ha[d] issues
with” him, but “now because this happened [the maternal
grandmother] is okay with me being there.” Father said he had
submitted to an on-demand drug test and was participating in a
parenting program. His goal for the future was “to be able to
provide a home for my kids and [mother].”
DCFS reported that mother and father were visiting the
children together three times per week, monitored by the
children’s caregiver.
The court held a combined jurisdiction/disposition hearing
on February 18, 2022. Mother’s and father’s attorneys requested
that the petition be dismissed and the children returned to the
parents’ custody; DCFS and children’s counsel urged that the
petition be sustained.
The court sustained the petition as amended. It then
addressed father’s status in the proceedings, stating that its
finding on presumed father status “was based on facts that were
not true.” The court continued: “It was represented to me that
father had gone back and signed the birth certificate. And the
birth certificate is produced and there’s no father on the birth
certificate. And father wasn’t present at the birth and whatever
the reason he wasn’t there, whether it was Covid or not, I think
it’s premature to say he is presumed at this point. So I’m
changing his status to bio based on the birth certificates.”
The court then asked whether mother and father had been
living together since H.’s birth. Mother’s counsel said mother
and father moved in together around H.’s second birthday, in
about May 2021. The court repeated that it was finding that
father was a biological father as to both H. and Princess. The
following colloquy ensued:
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“[Father’s counsel]: Your Honor, the prior finding was
presumed, and looked like it was [on a Family Code section]
7611(d) basis.
“The Court: Yes, but that was based on inaccurate
information. . . . Mother misrepresented the facts to me. I was
led to believe he was on the birth certificate and he’s not.
“[Father’s counsel]: . . . I looked at his declaration. He
never stated that that was the case himself. But he did live with
the child—the children for that extended period and held himself
out and supported.
“The Court: He lived with the children from the age of two.
The child turned two and then he started living with the child.
So he’s lived with the child . . . for six months.
“[Father’s counsel]: So, Your Honor, I’m just trying to
clarify. Is the court reversing that decision?
“The Court: I am reversing that decision because I based
my decision on the fact that the father was on the birth
certificate.
“[Father’s counsel]: I’ll just lodge my objection.
“The Court: The father is not on the birth certificate and I
have been told that father did not start living with [H.] until after
her second birthday.
“[Mother’s counsel]: I am looking at the paternity
questionnaire. Mother did not say that he signed the paternity
questionnaire for [H.]. She did say that he has held himself out
as [H.’s] father and acted like her father and that they were
living together for a period of time. So I think he would qualify
under [Family Code section] 7611(d). [¶] . . . [¶]
“The Court: . . . I relied primarily on mother’s assertion. I
can revisit my finding. I don’t believe it was accurate. He’s not
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on the birth certificate. They weren’t married. And he was not—
he lived with the child for six months. . . . [¶] . . . [¶] . . . So I
don’t believe the length of time that he’s been with mother
suffices for presumed status. He’s not on either of the children’s
birth certificates. And—but mother is maintaining that he is the
biological father for both children. [¶] In any event, I don’t
think—I think now that I have the birth certificates and I’ve
reconsidered the facts, I don’t think that a presumed father
status is warranted.”
With regard to disposition, the court ordered the children
removed from the parents and granted mother and father
reunification services. Father was ordered to drug test and
participate in a 12-step program, take a parenting class, and
comply with all criminal court orders. Mother was ordered to
complete a full drug program with random or on-demand drug
testing. Both parents were granted monitored visits with the
children three times per week.
Father timely appealed from the February 18, 2022
disposition order.
IV. Additional facts relevant to the Indian Child Welfare
Act.
On December 14, 2021, mother and father submitted
ICWA-020 forms in which they stated that neither they nor the
children were members of or eligible for membership in a
federally recognized Indian tribe or possessed Indian
identification cards; none of their ancestors was a member of a
federally recognized Indian tribe; neither they nor the children
were domiciled on a reservation; and the children had not been
wards of a tribal court. The court noted that the parents were
unable to sign the ICWA-020 forms because appearances were
8
remote, but the parents’ forms “indicat[ed] that no factors apply
to [them] that would cause the court to know.”
In response to the court’s questions regarding ICWA,
mother’s counsel said both of her parents were from Guadalajara
and she did not believe she had any Native American ancestry.
Father said he had spoken to his parents and he did not have any
Native American ancestry. The court therefore found there was
no reason to believe that ICWA applied to the children.
While this appeal was pending, on January 23, 2023, the
court ordered DCFS to interview or attempt to interview all
extended family members about whether the children are, or may
be, Indian children, and to document those efforts and submit a
written report.4
DISCUSSION
I. Father is a presumed father pursuant to section
7611, subdivision (d).
Father contends that the juvenile court erred by failing to
find that he qualified for presumed father status under section
7611, subdivision (d).5 For the reasons that follow, we agree.
A. Legal standards.
Dependency law distinguishes between “alleged,”
“biological,” and “presumed” fathers, which determines the extent
to which a father may participate in dependency proceedings and
4 The court grants DCFS’s January 31, 2023 request for
judicial notice of the juvenile court’s January 23, 2023 order.
5 On January 31, 2023, DCFS filed a letter with the court
indicating it had not taken a position below on the presumed
parentage issue and would not do so on appeal.
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be entitled to certain rights. (In re Mia M. (2022) 75 Cal.App.5th
792, 806.) An alleged father is a man who may be a child’s father
but has not yet established either presumed father status or
biological paternity, and who therefore is not entitled to custody,
reunification services, or visitation. (In re A.H. (2022)
84 Cal.App.5th 340, 350.) A biological father is a man “ ‘who has
established his paternity but has not established his qualification
as a presumed parent.’ ” (Ibid., quoting In re J.W.-P. (2020)
54 Cal.App.5th 298, 301.) A court may order reunification
services for biological fathers “ ‘if they are in the child’s best
interest.’ ” (In re A.H., at p. 350.) Finally, a presumed father is
one entitled to a presumption of paternity pursuant to
section 7611, and who therefore is entitled to “ ‘all the rights
afforded to parents in dependency proceedings, including
standing, the appointment of counsel, and reunification
services.’ ” (In re A.H., at p. 349, quoting Seiser & Kumli, Cal.
Juvenile Courts Practice and Procedure (2022) § 2.60[2][a], pp. 2-
129.)
Section 7611 sets out the requirements for presumed
parent status. Two aspects of section 7611 are relevant here.
First, a person “is presumed to be the natural parent of a child” if
he or she “meets the conditions provided in . . . Chapter 3
(commencing with Section 7570)”—that is, if he “sign[s] a
voluntary declaration of parentage to establish the parentage of
the child” (§ 7573, subd. (a)). A voluntary declaration of
parentage “is equivalent to a judgment of parentage of the child
and confers on the declarant all rights and duties of a parent”
unless the declaration is void, rescinded, or challenged. (§§ 7573,
subd. (d), 7573.5–7580.)
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Second, a person is presumed to be a child’s parent if he or
she “receives the child into his or her home and openly holds out
the child as their natural child.” (§ 7611, subd. (d).) The
presumption that arises under section 7611, subdivision (d) “is a
rebuttable presumption affecting the burden of proof and may be
rebutted in an appropriate action only by clear and convincing
evidence.” (§ 7612, subd. (a).)
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. (In re E.T. (2013)
217 Cal.App.4th 426, 437; In re T.R. (2005) 132 Cal.App.4th 1202,
1210.) On appeal, we review a trial court’s finding of presumed
parent status for substantial evidence. (County of Orange v. Cole
(2017) 14 Cal.App.5th 504, 509.) Under this standard, because
father had the burden of proof below, we may reverse only if “ ‘the
evidence compels a finding in favor of the appellant as a matter of
law.’ ” (Estate of Herzog (2019) 33 Cal.App.5th 894, 904, citing In
re I.W. (2009) 180 Cal.App.4th 1517, 1527–1528, disapproved of
on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989,
1010, fn. 7.)
B. Analysis.
As discussed above, the juvenile court found that father
was not entitled to presumed father status because his name did
not appear on the children’s birth certificates. That ruling was in
error. As relevant here, Health and Safety Code section 102425,
subdivision (a)(4)(C) provides that if a child’s parents are not
married to each other, the father shall not be listed on the birth
certificate unless the mother and father sign a voluntary
declaration of parentage or a court has issued a judgment of
paternity. Accordingly, the fact that an unmarried father
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appears on a birth certificate is persuasive evidence that he
signed a voluntary declaration of parentage and, thus, is entitled
to presumed father status. (E.g., In re Raphael P. (2002)
97 Cal.App.4th 716, 738 [evidence that man’s name was on the
birth certificate was prima facie proof that he signed a voluntary
declaration of paternity].) The inverse is not true, however:
Evidence that a man’s name is not on a child’s birth certificate is
not dispositive of his presumed father status because a man may
be a presumed father under section 7611 either because he
executed a voluntary declaration of paternity or because he
received a child into his home and held her out as his own.
There are no specific factors that a trial court must
consider to determine that a parent has received a child into the
home and has established a parental relationship, and “there is
no requirement that a child live with a parent for the parent to
achieve presumed parent status.” (W.S. v. S.T. (2018)
20 Cal.App.5th 132, 144; see also In re L.L. (2017) 13 Cal.App.5th
1302, 1314 [father “was not required to live with [child] in order
for him to receive her into his home within the meaning of section
7611, subdivision (d)”]; E.C. v. J.V. (2012) 202 Cal.App.4th 1076,
1086 [“nothing in section 7611(d) requires [mother’s former
girlfriend] to have received the minor into her home immediately
after the minor’s birth” to obtain presumed parent status].)
Instead, a parent seeking presumed parent status must “show
the existence of a parent-child relationship based on assuming
parental responsibilities, demonstrating commitment to the child,
and providing support.” (W.S. v. S.T., at pp. 147–148; see also
In re Alexander P. (2016) 4 Cal.App.5th 475, 493 [§ 7611(d)
“requires the person seeking presumed parent status to
demonstrate an established parental relationship with the minor
12
and commitment to the minor’s well-being”]; E.C. v. J.V., at
p. 1087 [inquiry is whether “through his or her conduct, an
alleged parent has demonstrated a commitment to the minor
child and the minor child’s well-being, thereby distinguishing the
alleged parent as someone who has entered into a familial
relationship with the child from someone who has not”].) In other
words, a presumed parent must demonstrate “ ‘a full commitment
to his paternal responsibilities—emotional, financial, and
otherwise[.]’ ” (In re Jovanni B. (2013) 221 Cal.App.4th 1482,
1489–1490; see also In re L.L., at p. 1310 [“ ‘[T]he core issues are
the person’s established relationship with and demonstrated
commitment to the child’ ”].)
Applying this analysis here, we conclude that father is H.’s
presumed father as a matter of law. It is undisputed that mother
and father have been in an exclusive relationship since H.’s birth
in May 2019 and lived together for some portion of H.’s life.6
Significantly, both parents stated that father supported H.
financially and held her out as his child to family and friends,
6 It is not clear from the record exactly when mother and
father lived together. During mother’s first interview with a
social worker, mother said she, father, and H. were living
together at the maternal grandmother’s home; and mother stated
in her December 16, 2021 Parentage Questionnaires that she and
father had lived together at the time of H.’s and Princess’s
conception and birth. At the disposition hearing, however,
mother’s counsel said mother and father began living together at
about the time of H.’s second birthday. Father stated in his JV-
505 that he had lived with H. from “birth” to “recently;” he
subsequently told a social worker that he and mother were not
living together when Princess was born because the maternal
grandmother had “issues” with him, but that he would “sneak in
the house.”
13
and father further stated that he had participated in “[a]ll
parental activities” with regard to H. There is no evidence to the
contrary. Accordingly, as to H., father is entitled to a
presumption of parentage under section 7611, subdivision (d).
The analysis is somewhat different as to Princess. Because
Princess was detained immediately after her birth, father was
not able to “receive [her] into his home” within the meaning of
section 7611, subdivision (d). Accordingly, our analysis is guided
by Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849, in which our
Supreme Court considered whether a man who had been
prevented from receiving a child into his home could attain
presumed father status. The court held that in such a
circumstance, a man could not constitutionally be denied
presumed father status if he “promptly comes forward and
demonstrates a full commitment to his parental responsibilities—
emotional, financial, and otherwise.” (Ibid.) The court explained:
“A 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.” (Ibid.)
In the present case, it is undisputed that father lived with
mother during at least a portion of her pregnancy with Princess
14
and provided financial support for the family. Father publicly
acknowledged that he was Princess’s father, both during mother’s
pregnancy and immediately after Princess’s birth. Although he
was unable to visit mother and Princess in the hospital because
he was unvaccinated, he visited virtually through FaceTime. He
requested at the detention hearing that Princess be placed with
him, and he participated actively in the dependency case,
contacting a social worker immediately after she was detained,
drug testing and attending parenting classes even before he was
ordered to do so, and regularly visiting Princess and H.
Accordingly, father is entitled to a presumption of parentage as to
Princess.
II. ICWA.
Father contends that DCFS failed to conduct an adequate
inquiry into the children’s possible Indian ancestry because it did
not inquire of the children’s extended family members. DCFS
has filed a partial motion to dismiss this appeal, asserting that
father’s assertions as to ICWA are moot.
We conclude that father’s ICWA claim has been rendered
moot by the January 23, 2023 order directing DCFS to conduct a
further ICWA inquiry. Our Supreme Court has explained that a
case becomes moot “when events ‘ “render[ ] it impossible for [a]
court, if it should decide the case in favor of plaintiff, to grant
him any effect[ive] relief.” ’ ” (In re D.P. (2023) 14 Cal.5th 266,
276.) Here, the juvenile court has already granted father the
relief he seeks on appeal by ordering DCFS to conduct a further
ICWA inquiry. Accordingly, we will deny as moot father’s
15
request that we conditionally affirm the disposition order and
order a further ICWA inquiry.7
DISPOSITION
The juvenile court is directed to amend the disposition
order to give father presumed father status as to both children.
As amended, the disposition order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
NGUYEN (KIM), J.*
7 Having so concluded, we deny DCFS’s request for partial
dismissal of the appeal as moot.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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