In re A.W. CA2/4

Filed 10/4/21 In re A.W. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
In re A.W., et al., Persons Coming B310407
Under Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 20LJJP00076A)
Plaintiff and Respondent,
v.
D.E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Davis, Judge Pro Tempore.
Affirmed.
Tungsten Legal and Elena S. Min, under appointment
by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, Rodrigo A. Castro-Silva,
County Counsel, Kim Nemoy, Assistant County Counsel,
and Peter Ferrera, Deputy County Counsel, for Plaintiff and
Respondent.
_____________________________________
INTRODUCTION
Family Code section 7611 provides that a parent may
be deemed a presumed parent if the parent “receives the
child into their home and openly holds out the child as their
natural child.” (Fam. Code, § 7611, subd. (d).) In the
proceedings below, the juvenile court declined to deem
appellant-father D.E. the presumed father of A.W. (born
August 2007), finding he had failed to meet these
requirements. On appeal, Father contends the court erred
because the evidence established that he had received A.W.
into his home and openly held her out as his natural child.
Because substantial evidence supported the court’s finding,
and Father’s evidence did not compel a different conclusion,
we affirm.
STATEMENT OF RELEVANT FACTS
A. DCFS Investigates a Referral
In December 2019, the Los Angeles County
Department of Children and Family Services (DCFS)
received a referral alleging that non-party mother Staci W.
instructed 12-year-old A.W. to call a family friend to request
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money, and to agree to permit the friend to molest A.W. in
exchange. It was also alleged that Mother was a drug
abuser, rendering her incapable of caring for A.W. and her
two half-siblings, that Mother was involved in domestic
violence, and that Mother sold marijuana. While DCFS
found no evidence to substantiate the allegations of potential
sexual abuse, Mother twice tested positive for cocaine during
the investigation. In January 2020, the court ordered A.W.
and her two half-siblings removed.1
B. DCFS Files a Petition and Continues
Investigating
In February 2020, DCFS filed a petition under Welfare
and Institutions Code section 300, subdivisions (a) and
(b)(1). Counts a-1 and b-2 identically alleged Mother and a
“male companion” had a history of engaging in domestic
violence in the children’s presence.2 Count b-1 alleged
Mother had a history of substance abuse, and the children
were under her care and supervision while she was under
the influence. At the detention hearing, the court deemed
Father the alleged father of A.W., noting he could
“absolutely change [his status as alleged] at some later and
appropriate date.” The court detained the children.
1 At the time of the referral, the petition, and the
proceedings below, Father was incarcerated.
2 The “male companion” was not the father of any of the
children, and was not involved in the proceedings below.
3
When DCFS discussed with the children their views on
placement, A.W. stated that she viewed Aaron W. (the father
of one of her half-siblings) as a father figure, and referred to
him as “dad.” Aaron confirmed he viewed all three children
as his, and stated he had been involved in A.W.’s life “since
she was a baby.” He claimed he held himself out as A.W.’s
father and had been the “primary father figure” in her life.
Mother explained that shortly after meeting Father
when they were both 16, she became pregnant with A.W.
Prior to giving birth, Mother went to live with an aunt in
Palmdale and lost contact with Father until after she gave
birth. Mother stated that Father remained in contact with
her and A.W. until he was incarcerated when A.W. was two
years old.3 Mother reported that Father had not been an
active parent in A.W.’s life. Mother confirmed that after she
met Aaron W. around 2007, he became a father figure to
A.W., and that A.W. viewed him as a father.
C. The Court Finds Father Is Not A.W.’s
Presumed Father
A July 2020 last minute information noted that on July
9, DCFS received a call from Father, who stated he held
himself out to be A.W.’s father, and that prior to his
incarceration in 2009, “he had regular visitation (monthly)
with his daughter” and had provided approximately $5,000
3 Mother stated she believed he received a sentence of 13 or
14 years.
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in financial support for her. Father asked for an attorney to
be appointed on his behalf, and requested that he be deemed
A.W.’s presumed father. On September 15, 2020, Father
filed a parentage statement, claiming he had told “everyone”
A.W. was his daughter, that A.W. had visited her paternal
grandmother, that he “visited [A.W.] a few times per week
prior to being incarcerated,” and that he had given money for
“food, clothes, baby supplies, diapers, bottles, etc.” At a
September 2020 hearing, over Father’s objection, the court
stated it would “keep its original finding that . . . [Father] is
the alleged father.”
At the October 2020 adjudication hearing, Mother pled
no contest to counts b-1 and b-2; the court noted Father was
non-offending. A December 2020 last minute information
noted that Aaron had stated he would be willing to have all
three children placed with him.
At the January 2021 disposition hearing, Father’s
counsel asked the court to reconsider its prior paternity
finding, arguing Father had accepted A.W. into his home,
regularly visited her, and provided financial support, and
there was no other presumed father. A.W.’s counsel
submitted the issue to the court. DCFS’s counsel objected,
arguing that Father was not present at the child’s birth, was
not named on the birth certificate, had lost contact with
Mother when A.W. was born, had been incarcerated since
A.W. was two years old, and had not been active in the
child’s life for ten years. The court declined to change
Father’s status, stating it agreed with the “facts in the
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assessment stated by” DCFS’s counsel, adding that Father
had “not played a significant part in [A.W.]’s life for . . .
almost a decade, and therefore does not rise to the status of
presumed father.” While the court permitted Father to have
monitored contact with A.W., it rejected Father’s request for
reunification services because “he is an alleged father.”
Father timely appealed.
DISCUSSION
A. Standard of Review
The parties disagree on the standard of review. Father
contends we should review any paternity finding for
substantial evidence. (See, e.g., In re Cheyenne B. (2012) 203
Cal.App.4th 1361, 1371 [“With respect to [the father’s]
section 7611, subdivision (d) contention [that he should have
been deemed a presumed father], our review of the trial
court’s findings is limited to considering whether substantial
evidence supports such findings”]; In re A.A. (2003) 114
Cal.App.4th 771, 782 [“In considering appellants’ challenge
to the trial court’s finding that R.B. is not a presumed father
. . . we apply the substantial evidence test”].)
However, Father had the burden of proof to establish
the presumption under Family Code section 7611. (In re
A.A., supra, 114 Cal.App.4th at 782 [person asserting
statutory presumption of being presumed parent has “‘the
burden of establishing by a preponderance of the evidence
that there were present two elements necessary to invoke
the presumption: reception [of the minor] into [his] home
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and openly and publicly acknowledging paternity’”].) On
this basis, DCFS argues we should review “whether the
evidence compels a finding in favor of the appellant as a
matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517,
1528, disapproved on another ground in Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7; see also In re R.V.
(2015) 61 Cal.4th 181, 218 [“‘where the issue on appeal turns
on a failure of proof at trial, the question for a reviewing
court becomes whether the evidence compels a finding in
favor of the appellant as a matter of law. [Citations.]
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”’”], quoting In re I.W., supra, at 1528.)4 Though we
agree with the standard of review articulated in In re I.W.
and In re R.V., we need not resolve the debate, as we find
both that Father’s evidence did not compel a finding that he
4 Father claims in his reply brief that this standard was
“expressly rejected” in Conservatorship of O.B., supra, 9 Cal.5th
989. In O.B., our Supreme Court clarified [“how an appellate
court is to review the sufficiency of the evidence associated with a
finding made by the trier of fact pursuant to the clear and
convincing standard”] (Id. at 995.) The court concluded that
“appellate review of the sufficiency of the evidence in support of a
finding requiring clear and convincing proof must account for the
level of confidence this standard demands.” (Ibid.) We fail to see
how this holding rejects the standard of review urged by DCFS.
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was a presumed father, and that substantial evidence
supported the court’s finding that he was not.
B. The Court Did Not Err in Refusing to Deem
Father a Presumed Father
“‘“Presumed fatherhood, for purposes of dependency
proceedings, denotes one who ‘promptly comes forward and
demonstrates a full commitment to . . . paternal
responsibilities—emotional, financial, and otherwise.’”’” (In
re Cheyenne B., supra, 203 Cal.App.4th at 1364, fn. 2.) “A
‘caretaking role and/or romantic involvement with a child’s
parent’ is not enough to qualify.” (In re M.Z. (2016) 5
Cal.App.5th 53, 63.) “A person is presumed to be the natural
parent of a child if the person . . . [¶] . . . [¶] receives the child
into their home and openly holds out the child as their
natural child.” (Fam. Code, § 7611, subd. (d).) DCFS does
not dispute that Father held A.W. out as his child, provided
approximately $5,000 in financial support for her, and
visited regularly for the first two years of her life.5 Father
does not dispute that A.W. never lived with him, and that
after he was incarcerated, he played no role in her life. Nor
does he claim his visits with A.W. occurred in his home. If
A.W. never lived with Father and never visited him at his
home, Father did not “receive[] the child” into his home, and
therefore cannot have established the presumption unless he
5 As noted, in July, Father informed DCFS that he had
visited A.W. monthly; in a form submitted to the court in
September, Father represented that he visited her weekly.
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demonstrated receipt in some other manner. In his reply
brief, Father “acknowledges the record provides no evidence
[A.W.] actually lived with him,” but argues he met the
requirement by demonstrating “regular visitation.” (See,
e.g., In re Cheyenne B., supra, 203 Cal.App.4th at1379 [“the
law recognizes an alternative means of satisfying the first
requirement under section 7611, subdivision (d) by evidence
of regular visitation”].) However, “regular visitation”
requires more than frequent visits.
We find instructive the case of In re A.A., supra, 114
Cal.App.4th 771. There, the biological father lived with the
mother and child for one to three months before the child
was a year old and visited the child in other people’s homes
alternate weekends thereafter until she was four (at which
point the mother cut the visits off). With help from his
parents, the biological father provided for some of the child’s
necessities. (Id. at 784-788.) On the other hand, another
man (R.B.) had the minor visit in his own home, and
personally bought her clothes, food, toys, and other
essentials. (Id. at 783.) R.B. held himself out as the minor’s
father, and stayed in contact with her until the time of the
dependency case. (Id. at 784.) Nevertheless, the trial court
found the biological father should be deemed the presumed
father over R.B. (Id. at 778, 784, 788.)
The appellate court reversed. Regarding the biological
father, the court found that even if he had visited the minor
on a regular basis, because there was no explanation as to
why the visits occurred in other people’s homes, “such
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visitation can be seen as a matter of convenience” in that
“[b]y visiting the minor at the maternal grandmother’s home
and at his parents’ home, respondent could avoid 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.” (In re A.A., supra, 114 Cal.App.4th at 786-787.)
The court noted there was “no indication of what he did with
the minor during his visits” and no evidence he “took an
interest in the minor’s schooling, health, recreation, etc.”
(Id. at 787.) The court further observed that the biological
father never asserted a right to custody or visitation after
the mother stopped the visits, and noted there was no
indication the minor viewed him as a family member. (Ibid.)
By contrast, the appellate court found that R.B. was involved
with the minor “from the very beginning” and provided
financially for her needs, buying her clothes, toys, food, and
other essentials, and that the minor visited R.B. often in his
home and was bonded with him. (Id. at 784.) Therefore, the
appellate court concluded that “the evidence is not sufficient
to support the trial court’s determination that R.B. has not
obtained presumed father status under subdivision (d) of
section 7611. As a matter of law, he has met the elements of
that statutory presumption.” (Ibid.)
Father argues his situation is analogous to R.B.’s
situation, and thus we, too, should find he met the elements
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of the statutory presumption as a matter of law. But we
agree with DCFS that Father’s situation is more akin to the
biological father’s in A.A. Like the appellate court in A.A.,
we find it insufficient that Father visited A.W. on a regular
basis when the visits took place outside his home, as “[b]y
visiting the minor at [other locations], . . . the biological
father could avoid the constant parental-type tasks that
come with having the child in his own home . . . .” (In re
A.A., supra, 114 Cal.App.4th at 776.) Similarly, there is no
evidence of what Father did with A.W. during these visits, or
even evidence that he interacted with her at all.
Additionally, after his incarceration, Father did not keep in
contact with A.W., and played no role (parental or otherwise)
in her life for over a decade. In short, there is little if any
evidence that Father and A.W. ever had a “‘fully developed
parental relationship.’” (In re M.Z., supra, 5 Cal.App.5th at
63 [“A person requesting presumed parent status under
section 7611, subdivision (d) must have a ‘fully developed
parental relationship’ with the child”]; see also In re A.A.,
supra, at 779 [presumed father “‘denotes one who “promptly
comes forward and demonstrates a full commitment to . . .
paternal responsibilities—emotional, financial, and
otherwise”’”].) We therefore find both that substantial
evidence supports the court’s determination that Father did
not meet the requirements of the presumption stated in
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Family Code section 7611, subdivision (d), and that Father’s
evidence did not compel a contrary conclusion.6
6 Father additionally argues that the court erred in finding
the presumption of presumed parenthood rebutted. Our review
of the record reveals the court did no such thing. Instead, as
discussed, the court found Father never established the
presumption.
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DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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