In re Kyla G. CA2/7

Filed 2/14/22 In re Kyla G. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re KYLA G., a Person B308835
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
20LJJP00190B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
DONALD A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael C. Kelley, Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and Kimberly Roura, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_________________________________
Donald A. appeals the juvenile court’s finding he was not
the biological father of now-15-year-old Kyla G., contending it
was not supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petition and Detention Hearing
On March 24, 2020 the Los Angeles County Department of
Children and Family Services (Department) filed a petition
pursuant to Welfare & Institutions Code section 300,
subdivisions (a), (b), (i) and (j),1 on behalf of Kyla and her
siblings, K.G. (now 17 years old), Anthony G. (now 12 years old),
Harmony G. (now 11 years old) and Roland A. (now five years
old). The petition identified Samuel G.2 as the presumed father
of the four older children and Roland A., Sr., as the alleged father
of the youngest. In the 23-count petition the Department alleged
the children’s aunt and legal guardian, Lashonda W., had
physically abused the children, was an abuser of drugs and
alcohol and had allowed her male companion to live in the home
despite being an abuser of drugs and alcohol. In addition, one
1 Statutory references are to this code unless otherwise
stated.
2 The record reflects Samuel also goes by the name Anthony.
For clarity, we refer to him as Samuel.
2
count of the petition alleged Samuel had a mental disability that
limited his ability to provide appropriate care and supervision of
the four older children.
The detention report included information regarding a
2015 dependency proceeding in which the Department had filed a
petition pursuant to section 300, subdivision (b), alleging the
children’s mother, Jenetta W., had failed to protect K.G., Kyla,
Anthony and Harmony (Roland had not yet been born) from
domestic violence between Jenetta and her boyfriend,
Roland, Sr., and from Roland, Sr.’s drug abuse. The juvenile
court sustained the petition, found Samuel to be the presumed
father of the children and ultimately terminated jurisdiction,
awarding joint legal custody of the children to Samuel and
Jenetta with sole physical custody to Samuel.
In 2018 Jenetta and Roland, Sr., were killed in a car
accident. In April 2019 Jenetta’s sister, Lashonda, was appointed
legal guardian for all five children. According to the detention
report Samuel suffers from an unspecified mental disability
caused by a childhood injury, which appears to have been, at
least in part, the basis for Lashonda’s appointment as the
children’s legal guardian.
At the detention hearing on March 27, 2020 the court found
a prima facie case for removing the children from Lashonda and
ordered them placed in foster care. Samuel’s counsel informed
the juvenile court of the prior case and the finding that Samuel
was the presumed father of the four older children. The court
stated that finding would remain in place. Kyla’s counsel advised
the court, “Kyla is particularly distraught about the current
situation and her mother having passed . . . . She is requesting
that the Department make all efforts they can to arrange
3
whatever kind of visitation they can for [Samuel].” The court
ordered monitored visitation between Samuel and Kyla, with the
Department having discretion to liberalize visits.
2. Donald’s Parentage Claim and the Court’s Parentage
Determination
In a July 17, 2020 jurisdiction/disposition report the
Department informed the court it had been contacted on
May 26, 2020 by Donald, who claimed he was Kyla’s biological
father. Donald explained Jenetta had told him he was Kyla’s
father and they had discussed introducing Kyla to him. Donald
said he was not involved in Kyla’s life because Roland, Sr., had
not allowed it. Donald expressed his desire to obtain custody of
Kyla. The Department recommended the court order a paternity
test.
On August 3, 2020 Donald’s counsel filed a Judicial Council
form JV-505 statement regarding parentage.3 The form indicated
Donald did not know whether Kyla was his daughter and
requested a DNA test. The form did not contain any additional
information regarding Donald’s relationship to Jenetta or Kyla.
At a hearing on the same date the court ordered DNA testing for
Kyla and Donald and granted Donald monitored visitation with
Kyla for two hours once per week.
In a last minute information filed September 2, 2020 the
Department stated neither Donald nor Kyla had appeared for the
scheduled genetic testing. Kyla told a Department social worker
she did not want to know whether Donald was her biological
father and would not submit to the test. In addition, Kyla’s foster
3 The form was signed by Donald’s counsel but not by
Donald.
4
parent was concerned the genetic testing could be detrimental to
Kyla’s emotional well-being. The Department reported, “The
information that [Donald] may be the minor’s father came as a
shock to the child and the child is having a difficult time
processing the information.” At a hearing on September 17, 2020
Kyla’s counsel reiterated Kyla’s opposition to genetic testing and
counsel expressed her own concern for Kyla’s mental health. The
court ordered the parties to brief the issue of compelling DNA
testing.
On September 30, 2020 Kyla filed a section 388 petition
requesting the juvenile court modify its August 3, 2020 order for
DNA testing. The petition explained Kyla had refused to
participate in the genetic testing and had refused to attend visits
with Donald because she had never met Donald and had no
relationship with him.
Also on September 30, 2020 Donald moved to compel DNA
testing as previously ordered. In an accompanying declaration
Donald stated he had been incarcerated at the time of Kyla’s
birth but had called Jenetta frequently to inquire about Kyla and
sent Jenetta letters and photographs for Kyla. When he was
released in 2013, he met with Jenetta; and she said she would
bring Kyla to meet him, but never did. Jenetta asked Donald not
to visit Kyla because it would upset Roland, Sr. Donald was
incarcerated again in 2015, but he continued to call and write to
Jenetta. Donald was released in 2019 and learned Jenetta had
passed away. He tried to locate Kyla at two prior addresses but
did not find her. In May 2020 Donald learned from Jenetta’s
cousin that Kyla was in foster care. Donald stated he wanted to
build a relationship with Kyla and wanted a DNA test to confirm
paternity. Donald had missed his two scheduled DNA test dates
5
due to transportation issues. Kyla and the Department filed
oppositions to Donald’s motion.
In a last minute information filed October 7, 2020 the
Department reported Samuel, his mother and his sister were all
shocked at Donald’s paternity claims. Samuel believed Kyla was
his biological daughter. Samuel’s mother, Mary M., told the
Department social worker that Samuel and Jenetta were living
with her when Jenetta became pregnant with Kyla and she had
never heard of Donald before this case.
At a hearing on October 7, 2020 the court stated it believed
paternity could be resolved without genetic testing but deferred
ruling on the motion to compel. The court set the matter for a
paternity hearing.
In advance of the hearing Kyla submitted a declaration
stating her mother never told her anyone other than Samuel was
her father. She said Samuel “has taken care of me all of my life,
for as long as I can remember, and has always treated me as his
daughter.” Kyla had never met or heard of Donald until his
appearance in this case, and she did not wish to have any
relationship with him.
Samuel filed a declaration stating he had “lived with
[Jenetta] during the conception of Kyla.” He believed Kyla is his
biological daughter, and he had never previously heard of
Donald. Mary also filed a declaration stating Jenetta had lived
with her when she became pregnant with Kyla and she had no
reason to believe Samuel was not Kyla’s biological father.
Samuel’s sister filed a declaration stating she had never heard of
Donald until this case and had no reason to believe Samuel was
not Kyla’s biological father.
6
Donald filed another declaration on October 19, 2020,
stating he began having a sexual relationship with Jenetta in
2005. During that time Jenetta regularly stayed overnight at his
house, and they often had unprotected sex. Donald claimed Kyla
resembled him and his other daughters. Jenetta had repeatedly
told him Kyla was his daughter. Donald recounted an incident in
2006 when Samuel approached Donald at a restaurant and said
Samuel was Kyla’s father. Donald believed Samuel made that
comment because he knew Donald had a sexual relationship with
Jenetta.
On October 21, 2020 Donald filed a signed statement
containing testimony he would give if he testified at the paternity
hearing. The statements concerned Jenetta’s social media
activity in 2015 and 2016. Donald stated that in August 2015
Jenetta posted a picture of Donald with a caption that referred to
Donald as her “boo” (a slang term of affection, often a boyfriend
or girlfriend) and said she was thinking about him. In November
2015 another woman with whom Donald has a child posted a
photograph of herself with Donald. Jenetta commented, “girl u
just have him for the moment so just enjoy him while u can.”
When the other woman asked who Jenetta was, Jenetta replied
she was the mother of Donald’s child. In October 2016, when
Donald was incarcerated, the other woman sent Jenetta a
message asking for pictures of Kyla to give to Donald. Jenetta
responded the same day with photographs of Kyla. Donald
submitted screen shots of these messages with his statement.
The paternity hearing was held on October 22, 2020. At
the outset counsel for the Department, Samuel and Kyla objected
to Donald’s proffered testimony and social media screen shots on
hearsay, foundation and authentication grounds. The juvenile
7
court stated it would admit the testimony and exhibits but “give
them appropriate weight and apply[] applicable law, including
hearsay.” The parties did not present any live testimony but
proceeded to argument based on the submitted declarations and
evidence.
After hearing argument the court denied the motion to
compel genetic testing and found Samuel to be Kyla’s biological
father. The court specifically relied on the parentage
questionnaire submitted by Jenetta in the 2015 dependency
proceeding in which Jenetta had identified Samuel as Kyla’s
father.4 In addition, the court pointed out, in that questionnaire
Jenetta had identified Samuel as Harmony’s father but indicated
another individual was her biological father. Jenetta did not
identify a biological father for Kyla. The court stated, “This tells
me that if in fact [Donald] was the bio father of [Kyla] that
mother in her parentage questionnaire would have made the
same distinction that she made in the case of the minor
Harmony. This to me is strong evidence that mother did not
believe anyone other than [Samuel] was the biological father to
Kyla.” The court further found the social media statements, even
if considered under a hearsay exception, lacked indicia of
reliability and were made in an untrustworthy context,
4 The record on appeal does not contain the parentage
questionnaire submitted in the 2015 proceeding. Although we
granted Donald’s motion to augment the record with the
questionnaire, the clerk of the superior court was unable to locate
the 2015 case file. Regardless, Donald has not disputed, either in
the juvenile court or on appeal, the juvenile court’s
characterization of the statements in the 2015 parentage
questionnaire.
8
particularly when compared with the statements in the 2015
parentage questionnaire that were made under oath.
The court found Donald was an alleged father only and
relieved his counsel. Donald filed a notice of appeal on
November 10, 2020.
3. The First Amended Petition, the Jurisdiction and
Disposition Hearings and Termination of Jurisdiction5
The Department filed a first amended section 300 petition
on October 5, 2020. At the jurisdiction hearing on November 18,
2020 the juvenile court dismissed one count of the amended
petition and sustained the remaining counts as interlineated.
The disposition hearing was held on February 17, 2021. The
court removed Kyla from Samuel and Lashonda and ordered
family reunification services for Samuel.
On June 18, 2021 Kyla was returned to Samuel’s custody,
and on December 20, 2021, Kyla was released to Samuel and
jurisdiction was terminated.
DISCUSSION
1. The Parentage Findings Are Reviewable
As Donald recognizes in his opening brief, generally the
first appealable order in the dependency process is the disposition
order. (In re A.O. (2015) 242 Cal.App.4th 145, 148; In re T.W.
(2011) 197 Cal.App.4th 723, 729; see Contra Costa County
Children & Family Services Bureau v. Superior Court (2004)
117 Cal.App.4th 111, 116 [“findings and orders made prior to the
5 We take judicial notice of the juvenile court’s minute orders
dated November 18, 2020, February 17, 2021, June 18, 2021 and
December 20, 2021. (Evid. Code, §§ 459, 452, subd. (d).)
9
dispositional hearing, including those made at the jurisdictional
hearing, may be reviewed on appeal from the dispositional order,
which is the first appealable judgment in a dependency
proceeding”].) Although Donald’s appeal may, therefore, have
been premature because filed three months prior to the court’s
disposition orders, Donald urges us to exercise our discretion
pursuant to California Rules of Court, rule 8.406(d) to deem the
notice of appeal as filed immediately after the entry of the
disposition orders. We agree it is appropriate to exercise that
discretion here. (See In re M.Z. (2016) 5 Cal.App.5th 53, 62
[“[a]ssuming, without deciding, an order regarding presumed
parent status is not directly appealable, we exercise our
discretion and treat the notice of appeal as timely from the
subsequent disposition order”].)
A second justiciability issue arises from the fact
dependency jurisdiction has been terminated since Donald filed
his notice of appeal. “As a general rule, an order terminating
juvenile court jurisdiction renders an appeal from a previous
order in the dependency proceedings moot. [Citation.] However,
dismissal for mootness in such circumstances is not automatic,
but ‘must be decided on a case-by-case basis.’” (In re C.C. (2009)
172 Cal.App.4th 1481, 1488.) Reviewing courts have exercised
their discretion to consider an appeal of jurisdiction findings
despite the subsequent termination of jurisdiction when the
jurisdiction findings “could be prejudicial to the appellant or
could impact the current or any future dependency proceedings”
or “the finding[s] could have consequences for the appellant
beyond jurisdiction.” (In re J.C. (2014) 233 Cal.App.4th 1, 4;
accord, In re C.C., at p. 1488 [“‘[a]n issue is not moot if the
purported error infects the outcome of subsequent proceedings’”];
10
cf. In re I.A. (2011) 201 Cal.App.4th 1484, 1493 [appellate court
will not exercise discretion to hear a moot appeal unless “specific
legal or practical consequence[s]” from the challenged finding can
be identified].)
Neither party has discussed whether termination of
jurisdiction affects this appeal. However, because the paternity
determination has an obvious direct and lasting impact on
Donald’s legal relationship to Kyla, we exercise our discretion to
address the appeal on the merits. (See In re P.A. (2011)
198 Cal.App.4th 974, 979 [termination of dependency jurisdiction
did not render moot appeal regarding paternity determination
because alleged father’s “rights were adversely affected by the
court’s judgment of paternity . . . , which may have consequences
for [alleged father] in the future”]; cf. In re Joshua C. (1994)
24 Cal.App.4th 1544, 1548 [“[b]ecause the jurisdictional issues
were actually litigated in the dependency proceeding, appellant is
collaterally estopped from relitigating those issues in the family
law court”].)
2. Substantial Evidence Supports the Juvenile Court’s
Paternity Findings
The Uniform Parentage Act (UPA) (Fam. Code, § 7600
et seq.), which governs parentage determinations (Elisa B. v.
Superior Court (2005) 37 Cal.4th 108, 116), identifies “the parent
and child relationship” as “the legal relationship existing between
a child and the child’s natural or adoptive parents.” (Fam. Code,
§ 7601, subd. (b); Elisa B., at p. 116.) In determining who
qualifies as a natural parent, the juvenile courts recognize and
differentiate among three categories of parents: an alleged
parent, a genetic parent (referred to in the governing statutes as
the “biological” parent) (see, e.g., Welf. & Inst. Code, § 361.5) and
11
a presumed parent. (In re H.R. (2016) 245 Cal.App.4th 1277,
1283; accord, In re D.P. (2015) 240 Cal.App.4th 689, 695.)
An alleged parent, one whose maternity or paternity has
not yet been established, or who has not achieved presumed
parent status (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15;
Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596),
has a narrow range of rights in dependency proceedings,
generally limited under the due process clause to notice of the
proceedings so that he or she may appear and have the
opportunity to challenge his or her parentage status. (In re D.P.,
supra, 240 Cal.App.4th at p. 695; In re J.H. (2011)
198 Cal.App.4th 635, 644; In re O. S. (2002) 102 Cal.App.4th
1402, 1408.) An alleged parent is not entitled to custody or
reunification services. (In re H.R., supra, 245 Cal.App.4th at
p. 1283; In re D.A. (2012) 204 Cal.App.4th 811, 824.)
A genetic parent is one whose maternity or paternity has
been established, but who has not achieved presumed parent
status pursuant to Family Code section 7611. (In re Zacharia D.,
supra, 6 Cal.4th at p. 449, fn. 15; In re H.R., supra,
245 Cal.App.4th at p. 1283; see In re P.A., supra, 198 Cal.App.4th
974, 980 [“[a] man’s status as biological father based on genetic
testing does not entitle him to the rights or status of a presumed
father”].) A genetic parent may have an opportunity for
reunification services only if the court determines such services
will benefit the child. (Welf. & Inst. Code, § 361.5, subd. (a).)
A presumed parent “ranks highest” of all three categories
and enjoys a full panoply of rights attendant to parenthood,
including entitlement to appointed counsel (Welf. & Inst. Code,
§ 317, subd. (a)), custody (assuming the court has not made a
12
detriment finding) and reunification services.6 (In re H.R., supra,
245 Cal.App.4th at p. 1283; In re D.P., supra, 240 Cal.App.4th at
p. 695; see generally In re Nicholas H. (2002) 28 Cal.4th 56, 65
[presumed parent status is intended to preserve the important
relationship created between parent and child when the alleged
parent has treated that child as a son or daughter].) “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.” (In re T.R. (2005) 132 Cal.App.4th 1202, 1209.)
“If the alleged father appears in court ‘and requests a
judgment of parentage on form JV–505,’ the court shall
determine: ‘(1) Whether that person is the biological parent of
the child; and [¶] (2) Whether that person is the presumed parent
of the child, if that finding is requested.’ (Cal. Rules of Court,
rule 5.635(h), fn. omitted.) To determine parentage, the court
may order genetic testing, or it may base the determination on
testimony, declarations, or statements of the alleged parents.”
(In re H.R., supra, 245 Cal.App.4th at p. 1284; see also In re D.P.,
supra, 240 Cal.App.4th at p. 696 [determination of biological
parentage may be made “either by ordering blood testing or based
6 “Under Family Code section 7611, the factors bearing on
presumed father status include: (1) whether the man and the
child’s natural mother married or attempted to marry;
(2) whether the couple was cohabitating; (3) whether the child’s
birth certificate named the man as the father; (4) whether the
man pays child support, either voluntarily or by court order;
(5) whether the man receives the child into his home and openly
holds out the child as his natural child; and [(6)] whether the
man signed a voluntary declaration of paternity. (Fam.Code,
§§ 7540, 7573, 7611, subds. (a)-(d).)” (In re H.R., supra,
245 Cal.App.4th at p. 1283, fn. 3.)
13
on testimony, declarations or statements by the mother and
alleged father”]; Cal. Rules of Court, rule 5.635(e)(2), (3).)
We review a juvenile court’s parentage determination for
substantial evidence. (In re M.Z., supra, 5 Cal.App.5th at p. 64;
In re H.R., supra, 245 Cal.App.4th at p. 1284.) “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.] If there is substantial evidence to support the ruling,
it will not be disturbed on appeal even if the record can also
support a different ruling.” (R.M. v. T.A. (2015) 233 Cal.App.4th
760, 780.)
Donald argues the evidence supporting Samuel’s biological
paternity was conclusory and speculative, particularly because
Samuel’s declaration did not contain “any indication that Samuel
and mother were in a committed sexual relationship during the
time period when Kyla was conceived.” In contrast, Donald
argues, he testified he had a sexual relationship with Jenetta
during the relevant time period and Jenetta had told him Kyla
was his daughter. While Donald is correct that Samuel’s
declaration did not contain much detail, it did state he had lived
with Jenetta during the time Kyla was conceived, which was
corroborated by Samuel’s mother. That evidence, plus the
uncontested fact that Samuel was the genetic father of two of
Jenetta’s other children (the two children closest in age to Kyla),
reasonably supports the inference that Samuel and Jenetta had a
sexual relationship during the time Kyla was conceived. In
addition, the juvenile court found much of Donald’s evidence to be
unreliable, especially when weighed against the parentage
14
questionnaire submitted by Jenetta in the 2015 proceeding.
Viewing the evidence in the light most favorable to the trial
court’s ruling and deferring to its resolution of conflicting
evidence, substantial evidence supports the finding Samuel was
Kyla’s biological father.
DISPOSITION
The juvenile court’s paternity finding is affirmed.
PERLUSS, P.J.
We concur:
SEGAL, J.
FEUER, J.
15