In re N.C. CA1/2

Filed 9/30/20 In re N.C. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re N.C., a Person Coming Under
the Juvenile Court Law.
HUMBOLDT COUNTY
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, CHILD
WELFARE SERVICES BRANCH,
Plaintiff and Respondent, A157222
v.
(Humboldt County
N.C.,
Super. Ct. No. JV180282)
Defendant and Appellant.
Appellant N.C. appeals from the juvenile court’s denial of his request
for presumed father status in dependency proceedings. He contends the
juvenile court’s order is not supported by substantial evidence.
BACKGROUND
Baby N.C., born in September 2018, tested positive for opiates,
methamphetamine, and amphetamines at birth. Appellant had been in a
romantic relationship with the mother throughout the pregnancy and was
present at the birth. The baby had to be resuscitated by medical staff and
was transferred that night to Oakland Children’s Hospital for further
medical care. A referral to the Humboldt County Department of Health and
1
Human Services (Department), stated that appellant and the mother had no
baby supplies and “were ‘passed out’ asleep the entire time after the birth.”
The mother had tested positive for opiates, methamphetamine, and
amphetamines during her pregnancy, and appellant reported she had tried to
stay away from drugs during the pregnancy but “had a couple slip-ups.” The
mother had entered a substance abuse treatment program at Progress House
on September 11, 2018, and agreed to a family maintenance program. When
the baby was released from the hospital the weekend of October 12, 2018, he
joined the mother at Progress House. With the assistance of the Department,
appellant entered a treatment program at another Progress House near the
mother and the child in late October 2018.
On November 2, 2018, the mother was asked to leave her program for
threatening physical harm to another resident. She did not immediately
inform the Department where she was living, then made contact and agreed
to return to Progress House, but on December 3, 2018, the day she was
supposed to re-enter the program, she refused to do so.
Appellant completed his treatment program in early December, spent
about two weeks in the program’s transitional housing, and returned to
Humboldt County around December 19 or 20, 2018. He was in contact with
the Department social worker six times in December, beginning with
December 3, about wanting to see and assume care for the child. Appellant
told the social worker the mother was not speaking to him and expressed
concern she might have relapsed; he was worried the child was not being
properly supervised and said the mother was refusing to discuss custody and
visitation with him. Progress House staff reported that appellant had done
“very well” and was ready to care for the child, and recommended outpatient
services; appellant was waiting for transitional housing that permitted
2
children. The social worker reported that appellant had “shown that he
wants to parent [the child].”
On December 17, 2018, the mother admitted to the social worker that
she had used heroin recently, having left the child with her new boyfriend
and his parents. She reported that appellant was the child’s father and the
child “looked just like” appellant, but requested a paternity test; she was
upset with appellant, saying he had not wanted her to have the child and,
when she talked to him on the phone, he only wanted to discuss their
relationship and did not care about the child’s developmental changes. She
acknowledged she was legally married to another man, Samuel H., but said
he was not the father and he was incarcerated in North Dakota when the
child was conceived.
On December 19, 2018, the mother’s probation officer found an empty
syringe, two sharps containers, two empty beer bottles, and two spoons with
white residue in the room where the mother and child were staying.
The child was taken into protective custody on December 21, 2018. The
detention report stated, among other things, that the mother had been
evading the social worker, missing appointments and being untruthful about
her whereabouts and substance use, had not followed through on developing
a plan to maintain sobriety, and had hindered appellant’s efforts to see the
child.
The Department filed a dependency petition (Welf. & Inst. Code, § 300)
on December 27, 2018, based on the mother’s untreated substance abuse
issues, her admitted use of heroin in December 2018, and the discovery of
3
drug paraphernalia in the room where she and the child were staying. The
petition named both appellant and Samuel H. as alleged fathers.1
At the detention hearing on December 28, 2018, appellant was
appointed counsel, who requested that appellant be elevated to presumed
father status. The Department and counsel for the child opposed the request
due to the existence of another alleged father. The mother confirmed that
appellant was present at the child’s birth and had a relationship with the
child. The court reserved its decision on appellant’s request, ordered genetic
testing of appellant and the child, ordered temporary custody vested in the
Department for detention in foster care and twice weekly visitation for
appellant, and continued the matter for a jurisdictional hearing.2
After the hearing, appellant filed a “Statement Regarding Parentage”
in which he stated he had told numerous people the child was his son, listing
names of family, friends and acquaintances, and noted that the mother had
named the child after him and he had attended multiple gynecologist
appointments with the mother, been at the birth and stayed in the Bay Area
for one week during the child’s four-week hospitalization in Oakland.3
Appellant indicated that although he had not yet been able to give the child
anything, he had clothes, diapers, wipes, blankets, bedding, swaddles,
bottles, pacifiers, toys, and other items for the child, and that the mother had
denied him visitation for unknown reasons despite his attempts to contact
1On December 26, 2018, The Department mailed a JV-505 form and
“Your Rights” brochure to Samuel H. at his last known address.
2The court subsequently filed an order on January 28, 2019, directing
for immediate genetic testing.
3 Appellant also filed a “Parental Notification of Indian Status” form,
stating he had no known Indian ancestry.
4
her, arrange for visitation, establish a bond with the child, and discuss the
child’s future housing and welfare.
The Department’s jurisdiction report reiterated that the mother and
appellant both reported appellant was the biological father and that the
mother had “evaded [appellant] in his efforts to see the child by refusing to
disclose the child’s location.” At the jurisdiction hearing on January 16, 2019,
appellant’s attorney represented that appellant was requesting presumed
father status regardless whether he was determined to be the biological
father. The juvenile court sustained the petition, finding the child came
within the provisions of Welfare and Institutions Code section 300,
subdivision (b), and authorized unsupervised visitation for appellant.
On January 24, 2019, the Department reported that its search for
Samuel H. had been unsuccessful.
The disposition report again reiterated that the mother had thwarted
appellant’s efforts to see the child by refusing to provide his location. The
mother had told the social worker appellant was not interested in the child
before he was born, implied he had not purchased any baby supplies, and
said appellant did not have a place to live and she was trying to get a
restraining order against him.
According to the report, appellant had completed treatment at Progress
House, as well as six weeks of anger management; had obtained a studio
apartment in Humboldt County; was employed and seeking a second job; had
attended Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings and
had support from his sponsor, family and friends; and had tested negative for
all controlled substances on January 21, 2019. The Department reported
that appellant loved the child very much and said “loving [the child] keeps
him happy.” Appellant told the social worker the child needs someone to take
5
care of him and love him; it was important for the child to have educational
opportunities and a healthy home life and healthy relationships, “beginning
with their parent and child relationship”; and both appellant and the child
needed an environment with structure and routine so they would maintain
physical health, well-being and emotional health. He requested funds to
attend another “Love and Logic” parenting class, saying “[i]t gives me more
tools to learn to be a better parent.” Appellant was reported to be
appropriate and affectionate with the child at supervised visits in January
2019, and the social worker agreed to approve appellant’s mother, who had
been attending the supervised visits, to serve as visitation supervisor.4
The Department recommended that appellant be elevated to presumed
father status, that the child be placed with him, and that appellant be offered
family maintenance services. The child, at this time, was in his second foster
care placement and adjusting well.
At a hearing on January 31, 2019, counsel for the mother objected to
elevating appellant to presumed father status and to his request for
overnight visits because the DNA results were still pending. Appellant’s
attorney reiterated that even if he was not the biological father, he was
seeking presumed father status on the basis of having accepted the child into
his home and held him out as his child, and suggested appellant might
qualify for presumed father status under Adoption of Kelsey S. (1992)
1 Cal. 4th 816 (Kelsey S.) due to the mother’s attempt to prevent his contact
with the child. The court declined to modify any orders. Subsequently, on
4Appellant had requested unsupervised visits; the social worker
explained that one of the attorneys had asked to review documentation about
how the supervised visits had been going.
6
February 13, 2019, the court modified the visitation order to include
overnight visits.
On March 11, 2019, the Department reported that DNA testing
excluded appellant as the child’s biological father. Appellant continued to
request presumed father status and questioned the paternity test results.
The matter was continued for efforts to identify other possible fathers, and
then for the Department to conduct a second DNA test on appellant and test
a newly identified alleged father, Brett M. Meanwhile, appellant reported
that the Department had restricted him to supervised visits and the court
ordered the Department to resume visitation as previously ordered if it had
restricted the visits only because appellant was not the biological father.
On April 15, 2019, the Department reported that the second DNA test
results confirmed appellant is not the child’s biological father and
recommended that presumed father status be denied and appellant’s
visitation discontinued. Appellant maintained he met the criteria for
presumed father status under Family Code section 7611, subdivision (d).5
At the outset of the contested disposition hearing, held on May 3 and
10, 2019, counsel for the minor and the mother objected to appellant’s request
for presumed father status, while counsel for Brett M. represented he was
waiting to take a DNA test and, if he was the biological father, would return
to court to be deemed a presumed father under Kelsey S.
Appellant testified that he and the mother began a romantic
relationship around the first week of January 2018. They were both
homeless and lived together in appellant’s truck. Appellant suspected the
mother was pregnant in February, suggested she take a pregnancy test, and
5Further statutory references will be to the Family Code unless
otherwise specified.
7
went with her to buy one. When she tested positive, the mother was shocked
and did not want to talk about it for a few days, while appellant was very
excited. He was involved throughout the pregnancy: He went to the first
Planned Parenthood visit, an ultrasound, and all the gynecologist
appointments, and was present at the birth. Asked whether he introduced
himself as the father at medical appointments, appellant testified he did not
need to, as it was assumed, he was the father. Appellant testified that from
the day he bought the pregnancy test, he wrote everything pertaining to the
child on a calendar he intended the child to be able to look at later,
explaining, “I grew up without my dad, so to me it was important for him to
see that his father cared.”6
Asked whether he offered the mother support during the pregnancy,
appellant testified he was “around her all the time” and “helped feed her,”
mowing lawns or doing whatever he could to come up with money. Asked if
he paid for any of her expenses, he testified, “me and her both pretty much
did everything together, so yeah.” The prenatal medical appointments were
covered by Medi-Cal. Appellant’s father paid for a motel room for appellant
and the mother to stay in, and his mother offered some support. Appellant
helped the mother pursue benefits for the child, but this was limited because
the mother was on felony probation. They did successfully get WIC (Women,
Infants, and Children Program). Asked whether he “prepared for the baby’s
arrival,” appellant testified that his focus was on getting a job and “getting
my life together” while the mother’s was “more on items for the baby.”
6 Appellant acknowledged that he left out negative things, like the
mother’s drug use, that there were things written on the calendar that would
have to be removed because they were inappropriate for a child to see, and
that it was “actually a pretty crappy calendar” and he intended to transfer
his notes onto a whole new one.
8
Appellant testified that he told “[p]retty much everyone” about the
pregnancy and that he was the father, including several posts on Facebook.
He tried to bond with the baby before birth by reading to the mother and
baby from a pregnancy book they used to keep track of the stages of
development, and he got a stethoscope and would listen to the baby’s
heartbeat and try to talk to the baby.
Appellant and the mother “started to separate” a few months before the
baby was born. Appellant went to the hospital when he learned the mother
had gone into labor, and he spent about 10 days living out of Oakland
Children’s Hospital while the baby was there. After the mother and baby
were discharged to Progress House, appellant went to the “sister rehab” for
men next door so he could visit them. Before he was able to gain admission,
appellant would call the mother and she would put the phone by the baby’s
ear so appellant could talk to him. After the mother left the program, she
stopped communicating with appellant.
Appellant testified that it was the mother’s idea to name the child after
him. He was not allowed to put his name on the birth certificate when the
baby was born because the mother was married to someone else, and was
unsuccessful when he tried to have his name added later. Appellant tried to
initiate a family law case in December 2018.
After appellant got out of the treatment program, he found a job and
housing and bought baby supplies, including a car seat, a co-sleeper, clothes,
and food. As of the disposition hearing, appellant had been visiting the child
at least twice a week and had had two overnight visits; it had been hard to
coordinate more because he worked nights. He testified that he had been in
the process of setting up childcare with the child’s foster mother but had not
been able to move forward with this since paternity came into question,
9
although he was convinced the foster mother would still be willing if
appellant was given custody. Appellant had income to support the child and
was willing to do so until he reached adulthood, and was willing to pay child
support if he was determined to be the child’s father. He testified, “I have
been [the child’s] father since before he was born, so I . . . would like it to stay
that way” because “I have a personal bond with him already.”
Appellant acknowledged that the mother had a “pretty significant”
drug history and that he used methamphetamine with her several times a
week; he testified that his own use had been minimal before he got involved
with the mother, but then “we were go, go, go nonstop.” It was usually the
mother who would get the methamphetamine, but he would drive her to get
it. He testified that the mother also used heroin daily throughout the
pregnancy. Although he was spending less time with the mother the three
months before the baby was born, appellant was sure she was using drugs
during that period. Asked whether, when he was using methamphetamine
with the mother, he was concerned he might be damaging the baby, appellant
responded, “[a]ll the time.” He testified that he encouraged the mother to
stop using drugs for the sake of the baby, including contacting the mother’s
probation officer and getting the mother to agree to a “warrant surrender,”
but the mother then decided not to do this. She was arrested about a week
later and released into a program, but left on the first day despite appellant’s
efforts to convince her to stay. Appellant did not think the mother disclosed
her drug use to her doctor but the doctor “seemed pretty aware” and
appellant was “fairly certain” he knew or suspected. Asked if he told the
doctor about the mother’s heroin use, appellant said he did not speak to the
doctor much and when he did, it “just kind of got pushed to the side.”
10
Appellant acknowledged thinking the baby’s health would have been better
off if the doctor had known about the drug use.
Asked about domestic violence issues, appellant testified that the
mother was very abusive. He was aware the mother told the Department she
was the victim of domestic violence by him and was not surprised, because
“she does tend to be a little bit of a pathological liar about things.”7
Appellant testified that he first held the baby the second night after his
birth. After the baby was discharged from Oakland Children’s Hospital,
appellant saw him on November 2, 2018, then did not see him until January
2019, after the dependency case had started.
Appellant had been clean since about October 15, 2018, and had not
relapsed since then. An assessment in December or January indicated he
should do outpatient services, but he was offered a job that conflicted with
the services, and the Department agreed he should take the job. He went to
AA/NA meetings as often as possible; his agreement with the Department
specified three times a week. He had completed one parenting class and
started the follow-up for older children, but was not able to continue it due to
his work schedule. He was willing to do domestic violence services and any
services the Department recommended for him.
Appellant argued he met the criteria to be a presumed father under
section 7611, subdivision (d), based on his open acknowledgement of the child
7 Appellant testified that the mother became “pretty hostile” around
twice a month, and he was concerned these incidents could put the baby at
risk. He estimated there were around 15 incidents of physical abuse between
January and September 2018. Asked to describe the most serious incident,
appellant described the mother “leaning back in the seat [of a vehicle] and
just proceeded to drill me repetitively with her feet, to the point where my
mom even came out and was, like, ‘I’m going to call the cops on you if you
don’t stop.’ ”
11
as his son, involvement during the pregnancy and having established a home
for the child. The Department argued appellant and did not have the
established relationship with the child that section 7611 was intended to
preserve, had not identified himself as the father at the mother’s medical
appointments, informed the mother’s doctors of her substance abuse, or paid
pregnancy or birth expenses, and did not take legal action to establish
paternity until three months after the baby was born. Counsel for the child
argued that appellant’s use of methamphetamine with the mother during her
pregnancy was not the action of a caring father, most of his visits with the
child prior to the dependency case were while the child was hospitalized due
to the severe health issues caused by the drug use, and appellant’s visits
during the dependency case were based on “bad information” (albeit given in
good faith) that appellant was the biological father. The mother maintained
that appellant’s two overnight visits with the child during the dependency
case were insufficient to show he received the child into his home as
contemplated by the statute; appellant failed to prove presumed father status
would further the integrity of the family; and application of the presumption
would not be in the child’s best interest in light of appellant’s failure to report
the mother’s substance abuse to her medical providers.
The juvenile court denied appellant presumed father status and
ordered his visitation with the child suspended after a “goodbye” visit, thus
terminating appellant’s role as a party in the case. The court concluded that
although appellant “clearly thought that he was the biological father” and
had “done a lot to improve his own life in the case,” the “reasons for the
presumed status . . . really doesn’t apply in this case.”
This appeal followed.
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DISCUSSION
“ ‘Dependency law recognizes three types of fathers: presumed, alleged
and biological.’ (In re T.R. (2005) 132 Cal. App. 4th 1202, 1208.) A biological
father is one whose paternity of the child has been established, but who has
not established that he qualifies as the child’s presumed father under Family
Code section 7611. (In re Zacharia D. (1993) 6 Cal. 4th 435, 449, fn. 15.) ‘A
man who may be the father of a child, but whose biological paternity has not
been established, or, in the alternative, has not achieved presumed father
status, is an “alleged” father.’ (Ibid.)
“ ‘A father’s status is significant in dependency cases because it
determines the extent to which the father may participate in the proceedings
and the rights to which he is entitled. [Citation.] . . . Presumed father status
entitles the father to appointed counsel, custody (absent a finding of
detriment), and a reunification plan. [Citation.]’ (In re T.R., supra, 132
Cal.App.4th [at p.] 1209.) The court may provide reunification services to a
biological father, if it determines that the provision of services will benefit the
child. ([Welf. & Inst. Code,] § 361.5, subd. (a).) Due process for an alleged
father requires only that he be given notice and an opportunity to appear and
assert a position and attempt to change his paternity status, in accordance
with procedures set out in [Welfare and Institutions Code] section 316.2. (In
re Paul H. (2003) 111 Cal. App. 4th 753, 760.) He is not entitled to appointed
counsel or to reunification services. (Ibid.)” (In re Kobe A. (2007) 146
Cal. App. 4th 1113, 1120.)
“The purpose of presumed parentage, in the dependency context, is
‘[t]o identify [persons] who, by reason of their parenting relationship, are
entitled to seek reunification services and custody.’ (In re Jerry P. (2002) 95
Cal. App. 4th 793, 802 (Jerry P.).) The ‘elevated status’ of presumed
13
parenthood is intended to ‘ “distinguish those who have demonstrated a
commitment to the child regardless of biology.” ’ (Martinez v. Vaziri (2016)
246 Cal. App. 4th 373, 377.” (In re Alexander P. (2016) 4 Cal. App. 5th 475,
485.)
“Presumed father status is governed by section 7611, which sets out
several rebuttable presumptions under which a man may qualify for this
status, generally by marrying or attempting to marry the child’s mother or by
publicly acknowledging paternity and receiving the child into his home.” (In
re M.R. (2017) 7 Cal. App. 5th 886, 898.) Here, appellant relies upon
subdivision (d) of section 7611, which applies where the parent “ ‘receives the
child into his [or her] home and openly holds out the child as his [or her]
natural child.’ ” Appellant “has the burden of establishing, by a
preponderance of the evidence, the facts supporting that entitlement.” (In re
T.R., supra, 132 Cal.App.4th at p. 1210.) We review the juvenile court’s
finding regarding presumed father status for substantial evidence, “drawing
all reasonable inferences and resolving conflicts in the evidence in favor of
the trial court’s ruling, and refraining from any reweighing of the evidence.”
(In re M.R., at p. 898.)
“In determining whether a man has ‘receiv[ed a] child into his home
and openly h[eld] out the child’ as his own (§ 7611, subd. (d)), courts have
looked to such factors as 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
14
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.) Hence the factors appellant relies upon here, as he did in juvenile
court: He suggested the mother take a home pregnancy test and was present
when she did; he was involved throughout the pregnancy, attending the
mother’s appointments with Planned Parenthood and her gynecologist, and
for an ultrasound; he told “pretty much everyone” about the pregnancy and
that he was the father; he helped feed the mother during her pregnancy and
his relatives provided some support; he was present for appointments to get
WIC and food stamps for the mother; he was present at the baby’s birth and
stayed for a week at the hospital in Oakland while the baby was there; after
completing treatment, he got a job, housing, and supplies for the baby; he
visited the child twice a week and had two overnight visits; and he expressed
willingness to support the child until adulthood.
The record leaves no doubt that appellant openly held out the child as
his natural son and believed he was the biological father until the DNA tests
established he was not; the mother, too, presented appellant as the natural
father, telling the social worker he was the biological father and the child
looked just like him, and naming the child after appellant.
Recognizing that he does not meet the literal requirement of section
7611, subdivision (d), that a presumed father receive the child into his home,
appellant argues he was prevented from physically bringing the child into his
home by the mother and the child’s hospitalization.
Much of appellant’s argument on appeal derives from Kelsey S., supra,
1 Cal. 4th 816, in which “the Supreme Court recognized under section 7611,
subdivision (d) a father who would become a ‘presumed father’ does not have
15
exclusive control over the means to achieve that status. No matter how
loving, caring, giving, and nurturing he is, control over a man’s presumed
father status ultimately rests with the mother, or in some cases a third party.
This is because the mother cannot be forced to allow the father to take the
child into his home. In addition, there will be cases where the father cannot
physically take the child into his home because, for example, the [Los Angeles
County] DCFS has taken custody of the child or the child, due to illness or
birth defect, must remain in the hospital.” (Jerry P., supra, 95 Cal.App.4th at
p. 807, fns. omitted.)
Kelsey S. involved a biological father who sought to prevent the mother
from placing the child for adoption but, under the governing statutes, had no
right to do so unless he was a presumed father. (Kelsey S., supra, 1 Cal.4th
at pp. 823–824.) Kelsey S. rejected the argument that section 7611 could be
satisfied by constructive receipt (id. at p. 829), but held the statutory scheme
“violates the federal constitutional guarantees of equal protection and due
process for unwed fathers to the extent that the statutes allow a mother
unilaterally to preclude her child’s biological father from becoming a
presumed father and thereby allowing the state to terminate his parental
rights on nothing more than a showing of the child’s best interest. If an
unwed father promptly comes forward and demonstrates a full commitment
to his parental responsibilities—emotional, financial, and otherwise—his
federal constitutional right to due process prohibits the termination of his
parental relationship absent a showing of his unfitness as a parent. Absent
such a showing, the child’s well-being is presumptively best served by
continuation of the father’s parental relationship. Similarly, when the father
has come forward to grasp his parental responsibilities, his parental rights
are entitled to equal protection as those of the mother.” (Id. at p. 849.)
16
Jerry P. applied this reasoning to the dependency context and to a man
who was not the biological father. (Jerry P., supra, 95 Cal.App.4th at
pp. 812–813, 816.) Reversing a juvenile court’s denial of presumed father
status based solely on the fact the man had not received the child into his
home, Jerry P. held section 7611 and the dependency scheme “violate the
constitutional rights of a man seeking presumed father status to the extent
they permit a mother or third person to unilaterally deny him that status by
preventing him from receiving the child into his home,” including “men who
are not biological fathers but who meet the other criteria for presumed father
status under the . . . Kelsey S. decision.” (Jerry P., at p. 797.) “[A] man is
entitled to protection from invidious discrimination in attempting to attain
presumed father status if (1) once he ‘knows or reasonably should know of the
pregnancy, he . . . promptly attempt[s] to assume his parental responsibilities
as fully as the mother will allow and his circumstances permit,’ and (2) ‘is
indisputably ready, willing, and able to exercise the full measure of his
parental responsibilities . . . . [¶] . . . [¶] . . . emotional, financial, and
otherwise.’ ” (Jerry P., at pp. 816–817, quoting Kelsey S., 1 Cal.4th at
pp. 847, 849, fns. omitted.)
Appellant did not make any argument based on Kelsey S. in juvenile
court and, under familiar principles of appellate review, cannot raise this
issue for the first time on appeal. (In re Elijah V. (2005) 127 Cal. App. 4th 576,
582.) Appellant’s arguments in the proceedings below were entirely based on
section 7611, subdivision (d): He argued that he met the requirements for
application of the statutory presumption, and emphasized that there was no
17
other father figure for the child.8 Argument that the statutory requirements
of section 7611, subdivision (d), have been established is not sufficient to
inform the juvenile court that a man is pursuing the constitutional rights
protected by Kelsey S. and Jerry P. (In re Elijah V., at p. 582.)
Nevertheless, we have discretion to consider forfeited claims. (In re
S.B. (2004) 32 Cal. 4th 1287, 1293.) Here, we choose to exercise this
discretion because of the significance of the interest at stake and indication in
the record that the absence of a biological tie between appellant and the child
was given undue emphasis in the juvenile court.
The Department’s reports describe appellant as having consistently
asserted his desire to parent the child, regardless of his relationship with the
mother, at least from early December 2018, when he completed his treatment
at Progress House. Prior to receipt of the DNA test results, the Department
reported that appellant “appear[ed] ready to assume custody of [the child]”
and recommended that appellant be elevated to presumed father status and
8Appellant’s at issue memorandum presented a purely statutory
argument for presumed father status under section 7611, subdivision (d),
including that appellant received the child into his home “to the fullest extent
possible within his ability to do so.” He argued that this presumption
rebutted the presumption that the mother’s legal husband was the father
(§ 7611, subd. (a)), and that failing to find appellant the presumptive father
would leave the child fatherless.
Appellant’s closing argument at disposition argued the only reason
Department changed its recommendation that appellant be granted
presumed father status was discovery he was not the biological father, which
caselaw confirms is not a necessary requirement; that no other father figure
was visiting the child; that appellant had “established a home” for the child,
visited as much as he could and had two overnight visits; that he met the
section 7611, subdivision (d), requirements despite not having a biological
connection to the child; and that despite the drug use during the mother’s
pregnancy, appellant had turned his life around.
18
given custody of the child with family maintenance services. After the DNA
results excluded appellant as biological father, the Department recommended
that he not be made a presumed father and that his visitation be terminated.
The Department gave no reason for its change of position other than the
paternity test results.
As the caselaw described above makes clear, biology is not the
determinative factor in determining whether a man is a presumed father.
“ ‘A man’s parentage of a child may be undisputed and legally proven, but he
may nevertheless fail to be a “presumed father”. . . . Conversely, even if
paternity is denied and legally disproved, a man may be deemed, under some
circumstances, to be a “presumed father.” ’ ” (Jerry P., supra, 95 Cal.App.4th
at p. 805, quoting Kelsey S., supra, 1 Cal.4th at p. 823, fn. 3.)
Citing In re T.R., supra, 132 Cal.App.4th at pages 1209–1210, the
Department suggests the juvenile court could have reasonably determined
appellant acted in a manner contrary to parental responsibility by supporting
and facilitating the mother’s drug use during pregnancy. Appellant admitted
he used methamphetamine with the mother several times a week, knew she
was using heroin daily, and facilitated her drug use by taking her to get
drugs. Despite knowing the drug use could harm the baby, appellant did not
tell the mother’s doctor about it. He minimized the drug usage in talking
with the social worker, saying the mother had tried to stay away from drugs
during the pregnancy but “had a couple of slip-ups.”
In re T.R., supra, 132 Cal.App.4th at page 1211, held the section 7611,
subdivision (d), presumption inapplicable to a stepfather who had shared a
home with the mother and child for seven years, held the child out as his and
provided financial support, but who was a registered sex offender and was
found to have molested the child. The court found the stepfather’s conduct
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was “antithetical to a parent’s role,” “a blatant violation of parental
responsibilities” and “more than counterbalanced the factors favoring [his]
presumed father status,” explaining that “the premise behind the category of
presumed father is that an individual who has demonstrated a commitment
to the child and the child’s welfare—regardless of whether he is biologically
the father—is entitled to the elevated status of presumed fatherhood. (See In
re Zacharia D.[, supra,] 6 Cal.4th [at p.] 451.) ‘In dependency proceedings . . .
the purpose of section 7611 . . . is to determine whether the alleged father has
demonstrated a sufficient commitment to his parental responsibilities to be
afforded rights not afforded to natural fathers—the rights to reunification
services and custody of the child.’ (Jerry P., supra, 95 Cal.App.4th at p. 804.)
If an individual can qualify for presumed father status based on his good
deeds consistent with parental responsibilities, it follows that under certain
circumstances he can be disqualified by repugnant conduct that is
detrimental to the child.” (In re T.R., supra, 132 Cal.App.4th at p. 1212.)
Certainly, this reasoning can be applied, to some extent, to appellant’s
disregard for the consequences of the mother’s substance abuse on the unborn
child’s health. But the situation in the present case is quite different from
that in In re T.R. While by no means an excuse, it bears noting that
appellant was experiencing his own addiction while the mother was
pregnant. After the baby’s birth, appellant entered and completed treatment,
and—as far as the present record discloses—turned his life around. As of the
disposition hearing, his success in establishing a home and the ability to care
for and support the child, and consistent effort to visit and demonstrate his
commitment to caring for the child since birth, appear to us more potent
factors in the analysis than his admittedly “serious transgression[s]” while
the mother was pregnant.
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The Department also emphasizes that, like the section 7611,
subdivision (d), presumption, the constitutional interest protected by cases
such as Kelsey S. and Jerry P. is in an existing parental relationship. (In re
D.M. (2012) 210 Cal. App. 4th 541, 553–554.) “Jerry P. was careful to describe
the constitutional interest as the man’s interest in ‘maintaining his
relationship with the child.’ ” (In re D.M., at p. 553.) “[W]e presume a person
is a child’s father, notwithstanding the absence of a biological connection, in
order to protect a developed familial relationship. Although a man with no
biological connection to the child, no marital connection to the mother, and no
way to satisfy the statutory presumption of paternity may nevertheless be
deemed a presumed father, he must do more than simply show that he has
done all he can under the circumstances to assert a right to parent. He must
prove that he has an existing familial relationship with the child such that
his rights deserve the same level of protection as those of a biological mother.
(Cf., Kelsey S., supra, 1 Cal.4th at p. 849.) A biological father is not entitled
to custody or to reunification services merely because he wants to establish a
personal relationship with his child. (In re Christopher M. (2003) 113
Cal. App. 4th 155, 160.) Likewise, an unmarried man who is not biologically
related to the child is not entitled to custody or to reunification services
merely because he wants to be the parent.” (In re D.M., at p. 554.)
The Department focuses on the facts that appellant did not see the
child from November 2, 2018, until January 2019, and then only in the
context of visitation through the dependency case. But with the mother
refusing to allow appellant contact with the child and appellant in residential
drug treatment until early December, shortly before the dependency petition
was filed, it is not apparent how appellant could have done more to see the
child during this period. According to the Department’s reports, appellant
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was asking the social worker about visiting and assuming care for the child
from at least December 3, 2018.
The Department faults appellant for being unable to see the baby after
the baby was discharged from the hospital due to appellant’s own inpatient
treatment, citing Adoption of O.M. (2008) 169 Cal. App. 4th 672, 675. In that
case, while the biological father’s efforts to assume parental responsibilities
were frustrated by the mother’s termination of their relationship and
relinquishment of the child for adoption, the court held the father was
impeded “to a far greater extent by the predictable consequences of his own
criminal activity,” which resulted in him serving a lengthy prison term.
(Ibid.) Appellant’s need for inpatient treatment obviously was due to his
substance abuse and, thus, a consequence of his own poor choices and
unlawful activity, but his decision to voluntarily enter treatment was an
attempt to address and overcome his addiction not only for his own benefit
but also for the benefit of the child he believed to be his son.
In explaining its denial of appellant’s request for presumed father
status, the juvenile court referred generally to the law described by the
parties opposing the request. As earlier described, these parties emphasized
appellant’s contribution to and failure to protect the child from the mother’s
substance abuse during pregnancy, and argued he did not have a sufficiently
established relationship with the child to warrant presumed father status.
The court remarked that appellant’s request created a “legal nightmare,”
apparently with reference to the child’s right to know his biological father,
that father’s right to attempt reunification, and the likelihood of ongoing
“disputes in family law court because of the issues and differences between”
appellant and the mother. To the extent appellant “promptly [came] forward
and demonstrate[d] a full commitment to his parental responsibilities—
22
emotional, financial, and otherwise” (Kelsey S., supra, 1 Cal.4th at p. 849),
however, the facts that he had differences with the mother or that the
biological father might enter the picture and attempt to assert rights would
not be sufficient reasons to deny presumed father status. Differences with
the mother are inherent where a man’s claim to presumed father status
depends on showing the mother prevented him from doing more to fulfill his
parental responsibilities. At the point the juvenile court denied appellant’s
request, no other man was seeking presumed father status. The prospect
that a newly identified possible biological father might assert conflicting
rights might have justified delaying a decision to enable the court to weigh
the competing “considerations of policy and logic” (§ 7612, subd. (b)), but
denying appellant’s request immediately terminated his ability to maintain a
relationship with the child even if no biological father sought to establish one.
The record demonstrates that appellant felt a strong connection to the
child he believed was his from the time of conception. His attention and
efforts were obviously marred during the pregnancy by his and the mother’s
substance abuse and homelessness. But appellant got himself clean and
turned his life around, and as soon as the mother started to prevent him from
having contact with the child, he began consistent efforts to see and assume
care of the child. Even the Department recommended presumed father
status—until it was discovered that appellant was not the biological father.
On this record, we cannot find the court’s decision supported by substantial
evidence.
But we cannot simply declare appellant a presumed father, as he
requests. More than a year has passed since the disposition hearing, and we
know nothing about appellant’s or the child’s current situation. Instead, we
will remand for the juvenile court to reconsider appellant’s request for
23
presumed father status in light of the views we have expressed in this
opinion.
DISPOSITION
The orders denying appellant’s request for presumed father status and
terminating visitation are vacated. The matter is remanded for
reconsideration in light of the views expressed in this opinion.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
In re N.C. (A157222)
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