S.L. v. Superior Court CA2/6

Filed 9/22/14 S.L. v. Superior Court CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
S.L. et al., 2d Civil No. B256801
(Super. Ct. No. JV42903)
Petitioners, (San Luis Obispo County)
v.
SAN LUIS OBISPO COUNTY
SUPERIOR COURT,
Respondent;
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest.
S. L. (Mother) and J. S. (Father) file petitions for extraordinary writs (Cal.
Rules of Court, rules 8.452, 8.456) to review orders of the juvenile court bypassing their
request for family reunification services with their child K. L., a person coming under the
juvenile court law. (Welf. & Inst. Code, §§ 300, subd. (b), 361.5, subd. (b).)1 We
conclude, among other things: 1) the trial court did not err by denying family
reunification services because Father did not establish a presumed father status, and 2) it
did not err by bypassing family reunification services for Mother because of her history
1
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
of drug abuse and resistance to treatment. (§ 361.5, subd. (b)(13).) The petitions are
denied.
FACTS
On January 7, 2014, the San Luis Obispo County Department of Social
Services (DSS) filed a juvenile dependency petition (§ 300, subd. (b)) alleging Mother
failed to protect K. L., a two-year-old girl, from abuse and neglect. On January 3, Mother
was arrested for using and being under the influence of a controlled substance,
methamphetamine, and "willful cruelty" to a child. The little girl was dirty and hungry.
She was in a car outside a fast food restaurant and had a large bruise on her forehead.
Mother was asleep in the car. When law enforcement arrived, Mother "was fidgeting"
and "appeared confused." DSS placed the child into protective custody because of
Mother's "chronic substance abuse problem."
On January 8, 2014, the trial court ruled that K. L. "is a person described by
Section[] 300 . . . (b) [and] (g)" and that "detention of the minor[] is required." It
authorized visits by the child to see Mother at the county jail.
In its revised findings and orders after dispositional hearing, the trial court
found: 1) K. L.'s "out-of-home placement is necessary," 2) the "current placement is
appropriate," 3) Father is the biological father of K. L., and 4) contact and visitation
between Father and K. L. is "not in [the] minor's best interest."
Father was convicted of robbery in 2011. He was released from state
prison on March 14, 2014. On March 27, he took a paternity test that proved he was
K. L.'s biological father.
DSS recommended that Father not receive family reunification services
because: 1) he had "a violent criminal history," 2) he "never had a relationship with
[K. L.]," and 3) K. L.'s "reunification with him would not be in her best interest." DSS
determined Father had not promptly taken the necessary steps to qualify as a "presumed
father," and consequently he was not entitled to reunification services.
2
At the May 21, 2014, contested hearing, Melissa De Poorter, a DSS social
worker, testified Father had known for two years that he "could be the biological father,"
but he "never" established "a relationship with" the child.
Father testified he had not taken steps to establish paternal rights until after
he was released from prison because, when Mother was pregnant, she told him he was
not K. L.'s father and he believed her. Father said, before entering prison, Mother's
brother told him that Mother gave K. L. the same first name as his (Father's) step-
daughter. Father testified he regarded this statement to be a "joke" and a "vulgar"
remark. He felt he did not need to take steps to determine if he was the biological father
at that time. Responding to a question by the court, he said he thought he "might be the
father" when he was in prison. He also felt "the odds were against it." He had a "short
term" relationship with Mother. They had sexual relations on two occasions. He said
predicting whether he was the father was "kind of a gamble" and "[he] lost."
DSS recommended Mother be bypassed from receiving reunification
services because of her chronic drug abuse problem and her resistance to treatment.
Mother testified that using "meth" was part of her "lifestyle" from 1999
until August 2010. The next time she used methamphetamine was in November 2013.
She was arrested for "being under the influence" when she was pregnant with K. L. Her
parental rights to another child were previously terminated because of her drug abuse
problem. Mother said she told Father that K. L. was not his child when she was pregnant.
She said T. L., her "ex-boyfriend," was the father. She said she "never saw or spoke to
[Father] again until the day he showed up in court" after he was released from prison.
De Poorter testified Mother had received various drug rehabilitation
treatment services. But after completing those programs, "[Mother] has relapsed each
time."
The trial court denied reunification services for Mother and Father finding
it would not be in the child's best interests. It rejected Father's claim that he achieved a
presumed father status. It found the DSS assessment to bypass Mother from receiving
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reunification services because of her chronic drug abuse addiction was proper. (§ 361.5,
subd. (b)(13).)
DISCUSSION
Presumed Father Status
Father contends the trial court erred in denying his request for family
reunification services. He claims the evidence does not support the court's finding that he
failed to show a presumed father status. We disagree.
Father relies heavily on his testimony and Mother's testimony to challenge
the trial court's order. But the issue is not whether he claims some evidence supports his
position, it is only whether substantial evidence supports the findings. (In re Brandon T.
(2008) 164 Cal. App. 4th 1400, 1408; In re Josue G. (2003) 106 Cal. App. 4th 725, 732.)
We must draw all reasonable inferences in support of the court's orders. (Josue G., at
p. 732.) We do not weigh the evidence or resolve evidentiary conflicts.
"A biological father is one whose paternity has been established, but who
does not qualify as a presumed father." (In re B.C. (2012) 205 Cal. App. 4th 1306, 1311,
fn. 3.) "Only a 'presumed' father . . . is entitled to reunification services." (In re Julia U.
(1998) 64 Cal. App. 4th 532, 540.) A biological father may become a "presumed" father
by showing he promptly assumed parental responsibility for the child. "If an unwed,
biological father promptly comes forward and demonstrates a full commitment to his
parental responsibilities, his federal constitutional right to due process prohibits the
termination of his parental relationship absent a showing of his unfitness as a parent."
(Id. at pp. 540-541.) "We consider his conduct before and after the child's birth,
including whether he publicly acknowledged paternity, paid pregnancy and birth
expenses commensurate with his ability to do so, and promptly took legal action to obtain
custody of the child." (In re Elijah V. (2005) 127 Cal. App. 4th 576, 583.)
An unwed biological father seeking presumed father status must take
parental responsibility within "a short time" after he knew or should have known of the
pregnancy. (Adoption of Michael H. (1995) 10 Cal. 4th 1043, 1060; In re Elijah V.,
supra, 127 Cal.App.4th at p. 583.) If paternity is not established and he believes he
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might be the father, he must take steps to resolve that issue and "seek to have his name
placed on [the child's] birth certificate." (In re J.H. (2011) 198 Cal. App. 4th 635, 646.)
He must show he "'has promptly taken every available avenue to demonstrate that he is
willing and able to enter into the fullest possible relationship with [his child] . . . even if
he has not as yet actually been able to form that relationship.'" (Adoption of Kelsey S.
(1992) 1 Cal. 4th 816, 838-839, italics added.) He should promptly request a paternity
test "despite the uncertainty [about whether] he was the father." (Adoption of A.S. (2012)
212 Cal. App. 4th 188, 212.) An indifferent or "laissez faire attitude" about parental
obligations is inconsistent with presumed father status. (Ibid.) A biological father has
the burden "to establish the factual predicate" to establish presumed father status. (Id. at
p. 209.)
Here the trial court found: 1) Father knew Mother was pregnant at a "time
consistent with" his sexual relationship with her, 2) but Father "did nothing to further
identify whether or not he had a biological relationship to" this child, 3) Father admitted
that while in prison he was aware of "the possibility of his parentage, and he elected to do
nothing at that time," and 4) Father did not make efforts to "elevate his status to more
than a mere biological father."
At the May 21, 2014, hearing, De Poorter testified that Father "was made
aware he could be the biological" father "approximately two years ago . . . ." But Father
"never" established "a relationship with" the child.
Father decided to take a paternity test only after he was released from
prison. Before entering prison, Father had the Mother's phone number. But during his
two years in prison, he did not request to take a paternity test or to have his name placed
on the birth certificate. (In re J.H., supra, 198 Cal.App.4th at p. 646.) He did not
publically acknowledge paternity. He never called Mother to find out about the
pregnancy, those expenses, the child or his parental responsibilities.
Father notes that he testified he was justified in not making those inquiries
or taking action because Mother told him he was not the father and he believed her. He
suggests the trial court was required to accept this testimony. But as trier of fact, the
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court "could reject appellant's testimony either in whole or in part." (Bazaure v. Richman
(1959) 169 Cal. App. 2d 218, 221.) It "'may reject part of the testimony of a witness,
though not directly contradicted, and combine the accepted portions with bits of
testimony or inferences from the testimony of other witnesses thus weaving a cloth of
truth out of selected available material.'" (Ibid.) The credibility of witnesses "is the
exclusive province of the trial judge." (In re E.L.B. (1985) 172 Cal. App. 3d 780, 788.)
DSS claims: 1) evidence supports reasonable inferences that Father
believed he could be the biological father, but he elected not to promptly assume parental
responsibility, and 2) the trial court could find Father's testimony was impeached. We
agree. Father admitted he knew Mother was pregnant. Her pregnancy fell within the
timeline consistent with their sexual relations. The court could find this impeached the
credibility of Father's and Mother's testimony that while pregnant Mother had the ability
to know that Father was not K. L.'s biological father. A DSS addendum report reflects
that before the paternity testing results, Mother told a DSS social worker that she did "not
currently know who [K.L's] father might be." The court could reasonably infer she could
not have known paternity without a DNA test, and any reasonable presumed father would
know this and promptly request such a test. But Father did not make such a request or
indicate any desire to take one until after he was released from prison.
Moreover, Father testified that while in prison he "thought [he] might be
the father" of the child. He said two years earlier, before he went to prison, Mother's
brother told him, "'[Mother] named your daughter [K.], so now you will never forget
your daughter.'" (Italics added.) Father admitted that after hearing this information he
made no effort to determine whether he was the biological father. He claimed he felt the
brother's remarks were a joke, but the trial court did not accept that part of his testimony.
Father testified Mother did not tell him about naming the child. But a DSS
report reflects that he told the DSS social worker that "[Mother] had previously advised
him that she gave her daughter the name of [K.] because she knew [Father] would
remember her that way . . . . This was because [Father] . . . had a stepdaughter" with that
name. De Poorter testified that at a prior court hearing Father told De Poorter that
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Mother had made these statements. The trial court could find De Poorter's testimony was
credible, and that it impeached Father's testimony and showed that Father had notice of
his paternity.
The trial court also found internal conflicts in Father's testimony. Father
said he "totally" believed he was not the biological father. But during further questioning
he said that while he was in prison he believed he might be the father. The court could
properly resolve this conflict against him in making its findings. (In re E.L.B., supra, 172
Cal.App.3d at p. 788.) It could reasonably infer his statement about gambling odds
which he "lost" to be evidence of a "laissez faire attitude" toward parental obligations
which showed the reason why he did not promptly take action. (Adoption of A.S., supra,
212 Cal.App.4th at p. 212.)
De Poorter's testimony supports a finding that Father had known for two
years that he could be the father, but took no action. There is no evidence he had any
relationship with this child. The trial court could reasonably reject his claim that he took
all reasonably prompt steps to assume parental responsibility. Father has not shown
error.
Moreover, DSS contends that even if Father had established he was entitled
to a presumed father status, he was not entitled to family reunification services because of
his criminal history. In its second addendum report, it said if Father "were to be elevated
to presumed father status," he could be subject to a bypass of reunification services under
section 361.5, subdivision (b)(12).
Section 361.5, subdivision (b)(12) provides, in relevant part, that family
reunification services "need not be provided" where "the parent or guardian of the child
has been convicted of a violent felony." In its addendum report No. 3, DSS said Father
had been convicted of robbery, assault with great bodily injury, burglary, "domestic
battery," "child endangerment," and other crimes. It said he also was "extradited and
served a prison sentence for a Burglary he committed" in another state. The evidence
DSS presented regarding his criminal convictions is uncontradicted.
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"Once it is determined one of the situations outlined in subdivision (b)
applies, the general rule favoring reunification is replaced by a legislative assumption that
offering services would be an unwise use of governmental resources." (In re Baby
Boy H. (1998) 63 Cal. App. 4th 470, 478.) Section 361.5, subdivision (c) "prohibits the
court from ordering reunification . . . 'unless the court finds . . . that reunification is in the
best interest of the child.'" (In re Kobe A. (2007) 146 Cal. App. 4th 1113, 1123.)
Here the trial court found reunification services to the Father "will not
benefit the child," and any contact or visitation was "not in [the] minor's best interest."
Those findings are supported by the record. DSS said reunification services would not be
in the child's "best interest" because: 1) Father "does not have any relationship with
[K. L.]," 2) "[Father] has been incarcerated for a violent felony for the previous two
years," and 3) Father "has not shown a pattern of behavior consistent with an ability to
provide a physically and emotionally safe home for [K. L.]." In his testimony Father did
not state his current monthly income or disclose his personal financial resources to be
able to support this child. He said he and three other adults share the rent for an
apartment. Father and another adult who lives in that apartment have criminal records.
Father is on parole, the other adult is on probation. Father did not know what crime the
other man committed. Father said he has a "medical marijuana card," which he obtained
in 2008, before he went to prison for robbery. But he did not mention what current
medical condition he has that authorized the use of that substance. DSS said he has a
history of arrests for possession of controlled substances. Father told DSS that his history
of using methamphetamine "tended to contribute to criminal activity."
Father said he was motivated to care for this child. He testified, "I'm good
around my children." But he has a 2007 conviction for child endangerment. A DSS
report indicated that in a prior domestic violence incident the victim was the mother of
another one of his children. DSS said "[i]t was reported" that he had "grabbed [her] by
her wrist, and twisted her arm behind her head." He has a 2012 conviction for assault
with great bodily injury. Father has not shown why the trial court could not reasonably
8
find he did not make a sufficient showing to challenge the DSS assessment that he could
not provide a safe environment for this child. He has not shown error.
Bypassing Reunification Services for Mother
Mother claims there is no evidence to support the trial court's finding that
reunification services should be bypassed because of a history of drug abuse and
resistance to treatment under section 361.5, subdivision (b)(13). We disagree.
"Section 361.5, subdivision (b)(13) provides that reunification services
need not be provided to a parent or guardian who 'has a history of extensive, abusive, and
chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this
problem during a three-year period immediately prior to the filing of the petition that
brought that child to the court's attention.'" (In re Brooke C. (2005) 127 Cal. App. 4th 377,
382.) "Resistance to prior treatment for chronic use of drugs may be shown where the
parent has participated in a substance abuse treatment program but continues to abuse
illicit drugs." (Ibid.)
Mother testified she began "using meth" in 1999. She said she had lost
parental rights to another child because of her drug abuse problem. She continually used
drugs as part of her "lifestyle" until the birth of K. L. On August 18, 2010, she was
arrested for "being under the influence." She was pregnant with K. L. at that time.
Mother claims her testimony shows that she maintained continuous
"sobriety" for three years after August 2010. But the credibility of that testimony was a
matter for the trial court. (Bazaure v. Richman, supra, 169 Cal.App.2d at p. 222.)
Moreover, she used methamphetamine again in November 2013. She claims this was
only a short relapse and should not have been considered resistance to treatment. But this
was not a single event. She admitted using this drug four times since November 2013.
She also testified she received "a great deal of education about how to deal with [her]
addiction." But she admitted that history of drug rehabilitation services "didn't seem to
help [her] avoid the use of methamphetamine" in November 2013.
DSS recommended against reunification services because of Mother's
longstanding inability to overcome her drug abuse problems. De Poorter testified Mother
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has a history of receiving drug treatment rehabilitation services. "[S]he's been able to
access services prior to this, but if you end the services, she has relapsed each time."
Mother has not shown why the trial court could not reasonably find her chronic drug
addiction and resistance to treatment placed the child's safety at risk. She has not shown
error.
The petitions filed by Mother and Father are denied.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
J. Barry Smith for Petitioner S.L.
Mary Ann Foster for Petitioner J.S.
No appearance for Respondent.
Rita L. Neal, County Counsel, Leslie H. Kraut, Deputy County Counsel, for
Real Party in Interest.
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