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In Re Bethany M., A Person Coming Under the Juvenile Court v. Robert S


December 13, 2010


Appeal from postjudgment orders of the Superior Court of Orange County, Douglas Hatchimonji, Judge. Affirmed. (Super. Ct. No. DP012929)

The opinion of the court was delivered by: Ikola, J.

In re Bethany M. CA4/3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Robert S. (father) appeals from the court's termination of his parental rights to Bethany M., who is now five years old. Father contends the court abused its discretion by denying his Welfare and Institutions Code section 388 petition seeking presumed father status, reunification services, and/or placement of Bethany in his care.*fn1 We affirm the postjudgment orders.


On February 6, 2006, three-month-old Bethany and her two siblings were removed from Monica M.'s (mother's) custody due to mother's drug use and incarceration. In mother's interview with the Orange County Social Services Agency (SSA), she stated she had used methamphetamine since age 15, but had been sober for three years prior to Bethany's birth. Shortly after the child's birth, mother began using methamphetamine again. Mother named father as Bethany's father, but misspelled his last name. She did not know his whereabouts and had never told him she was pregnant with and had borne his child. Mother said father was violent with her and used cocaine frequently. He was not named on Bethany's birth certificate.

By June 2006, SSA had exhausted all available leads in its efforts to find father. The court found SSA exercised due diligence in that endeavor. The court found true the dependency petition's allegations, declared Bethany a dependent of the juvenile court, and granted reunification services to mother (who had been released from jail in May 2006).

In September 2007, Bethany and her siblings began a 60-day trial visit with mother. At the 18-month review hearing in November 2007, the court returned all three children to mother's custody under a family maintenance plan. By then, mother had borne a fourth child.

In January 2008, mother tested positive for cocaine use, causing SSA to retake custody of all four children. Shortly thereafter, however, mother's positive cocaine test was determined to be inaccurate. The court returned the children to mother's custody.

In May 2008, mother requested that the children be removed from her care, since she was no longer willing or able to care for them.*fn2

In July 2008, the court entered father's default as to Bethany due to SSA's inability to locate him. The court terminated mother's reunification services and set a section 366.26 selection and implementation hearing for November 2008.

In June 2009, Bethany and her younger brother were placed with foster parents. Several months later, the foster parents were potentially interested in adopting Bethany's brother but not Bethany. At a November 2009 team decision making meeting, the foster mother expessed a concern "about the lack of strong attachment" on Bethany's part. (SSA reported Bethany had "had difficulty in attaching to her caregivers in the past, as [mother] had no attachment to [her], and [Bethany had] been in 14 placements.") The foster mother also did not feel attached to Bethany because the child is biracial, and the foster mother had "experienced negative comments out in public regarding [the childrens'] difference in race, and the foster mother [was] concerned about how it may affect Bethany in the future."

In November 2009, mother provided SSA with the correct spelling of father's last name. Father received a notice from SSA and contacted the social worker on November 30, 2009 -- over three and a half years after Bethany's entry into the dependency system. Father said he wished to care for Bethany if he was indeed her father, and stated "he had five adult children that he assisted in raising" and did not want his child to be adopted out. He said Bethany might be his child if she appeared biracial, since he is African-American. He requested a paternity test. Father said he would attend the next court hearing. He said he was "self employed as a commercial agent for drunk driving and drug abuse," had been in the army for six years, and had been a sniper.

In an interview, mother stated father suffered from flashbacks and displayed "unstable reactions," and that she left him because he once choked her in front of the children and she was concerned for their safety and her own.

According to adoption assessments conducted in October and November of 2009, Bethany was adoptable. In December 2009, an adoptions worker (who had planned to submit a referral for a prospective adoptive home for Bethany) stated she could not proceed with the child's placement while father remained a possibility.

That same month, father appeared in court, was appointed counsel, and requested paternity testing, which the court granted. At the hearing, in response to the court's questions, father related the following: He had just moved into his sister's home. He did not know of mother's pregnancy or Bethany's birth until notified by SSA. He had lived with mother for two years, had not spoken with her since then, and wanted to "step up" as Bethany's father if she was his child.

In January 2010, father asked SSA about Bethany being placed with him or in another home due to his concern that the foster mother seemed "racist" toward Bethany. Father had a long arrest record, and had suffered a felony conviction for possession of a narcotic controlled substance. Father informed SSA he had been hospitalized for four days due to a heart problem, but was now fine.

In February 2010, the paternity test results revealed a 99.9 percent probability that father was Bethany's biological father. When SSA informed father of the results, he asked when Bethany could reside with him. Father again asked that Bethany be removed from her current placement which he viewed as "racist." He stated he had four adult sisters who could take placement of the child. He was living with one of those sisters and her three minor children in a three-bedroom apartment. Father stated he was married, but he and his wife were planning to divorce. He claimed that after his honorable discharge from the army, he had created a homeless program that he ran for about 15 years. There, mother had worked with him and for nine months they had "chemistry" and a relationship, but when she began using drugs again, he let her go from the program. In 2004, father had undergone open heart surgery, and his heart condition continued to be monitored and required medication. He stated he receives income from sponsors for making commercials and slogans against drunk driving.

In an interview, mother voiced concerns about father caring for a young child because of his heart condition and age. (Father's year of birth is 1958.)

Father missed a visit with Bethany on February 17, 2010, due to a claimed flat tire. On February 27, father's wife told SSA that father "was hospitalized and not doing that well," and would undergo open heart surgery for a leaking valve. Two days later, he was still hospitalized and unsure of his release date. Several days later, father reported he was out of the hospital and had not had surgery. He seemed reluctant to talk about his heart condition.

The court found father to be Bethany's biological father and set a paternity hearing for March 2010. The paternity hearing and the section 366.26 hearing were subsequently continued several times.

On March 10, 2010, father visited with Bethany for the first time. Bethany's foster mother said the visit went "really good," and that Bethany "speaks of her father all the time."

Father's sister (with whom he lived) was interested in having Bethany placed with her and was willing to adopt or take guardianship of her if Bethany was not reunited with father. SSA approved Bethany's placement with the paternal aunt, which could begin as soon as the aunt formed a relationship with the child through visitation, possibly in two weeks. Father and the paternal aunt visited with Bethany on March 17, 2010. Father "zone[d] out" at times, made phone calls, and left the room several times. During father's March 10 and 17 visits with Bethany, he inappropriately talked about the court case and the judge.

Bethany's foster mother reported she could not continue keeping Bethany in the home because Bethany made the foster mother's oldest daughter uncomfortable. The foster mother gave notice to have Bethany removed from her home by April 2, 2010.

Father missed a March 24 visit with Bethany due to car trouble. He asked SSA to place Bethany in his care for a while before placing her with the paternal aunt, because he was concerned his sister would adopt the child. The social worker reminded father that he (father) had requested Bethany's placement with the paternal aunt. The social worker advised father that Bethany would probably be placed with the paternal aunt on April 2, so father was to move out by then.

On March 29, 2010, the paternal aunt reported father was making the situation difficult by trying to assert authority and coming by to see Bethany. On March 30, father told SSA he was in a parent education program and would be moving into a two-bedroom apartment on April 1, 2010, which he was fixing up for Bethany and himself. Father stated he would prefer that Bethany be placed with his cousin, rather than the paternal aunt. He said he was having problems with the paternal aunt and the placement could be "dangerous." He claimed the paternal aunt was selling drugs from her house and stated he had phoned the police on March 29 to report a bag of drugs in the aunt's bedroom. He said he was at the house even though he was not authorized to visit Bethany there because he was trying to protect the child. The social worker asked if father planned to visit Bethany the next day as scheduled. Father paused, asked the time of the visit, paused again, then confirmed he would make it.

But on March 31, father missed his visit with Bethany. He told the social worker his cousin would phone about placement of Bethany. But when SSA spoke to the cousin she told SSA that no one had mentioned placing a child in her home and she could not accommodate one since she was already caring for a child. On April 7, father missed another visit with Bethany.

SSA questioned the paternal aunt about father's claim to have phoned the police about her. The paternal aunt said she had phoned the police about father because he kept walking around her apartment complex after she told him he could not see the child. She stated: "[Father] causes problems everywhere he goes[,] which was why the other family members were not involved and he was residing with her. . . . [H]e has 'mind problems' which was the reason his other children will not be around him." Police logs confirmed (1) the paternal aunt contacted the police on March 28 about her brother being at a location where he was not supposed to be "due to a juvenile," and (2) father contacted the police on April 1 about his sister locking him out.

On April 8, father asked SSA if it had placed Bethany with the paternal aunt because "right now a lot of things are going on with the police and my sister." Father alleged the aunt had a history of beating her biological children. Father asked when he could visit Bethany; the social worker reminded father his visitation remained the same, i.e., every Wednesday from 12:00 p.m. to 4:00 p.m. Father claimed to have been released from the hospital that day after a two-week hospitalization. He reported having suffered a stroke on August 1, 2009, at which time the ambulance crew purportedly dropped him from the gurney and caused an infection under his heart pacer. He also stated he was being monitored and required continual hospitalization for a blood clot.

On April 12, Bethany was again assessed as likely to be adopted and reported to be cute, well-behaved, able to "self-groom," and follow basic instructions.

That same day, the social worker advised father that if he missed his next visit with Bethany in two days, it would be difficult to continue visitation. Father guaranteed he would be there. But on the day of the visit, an unknown caller left SSA a voicemail message that father's truck had broken down, "as he hit something and it burst the oil pan," and therefore father would miss the visit. On April 15, father advised SSA he had missed the visit because he was hospitalized. Father did visit Bethany on April 28. As of April 27, father had not provided the social worker with verification of any of his claimed hospitalizations or parent education enrollment or attendance.

The paternal aunt told SSA that father did not raise his own biological children, who had been removed from his care and placed with their grandmother. The social worker was able to confirm that father had been involved in other dependency cases, but had not yet received any further details.

In May 2010, father petitioned under section 388 for the court to change its prior finding that SSA exercised due diligence trying to find and notice him. He asked the court to find notice to him was defective and to vacate all orders in the case. He further asked the court to declare him Bethany's presumed father and place her in his home or, alternatively, to offer him services with a 90-day-continuance of the case or, alternatively, to place Bethany with him and offer him services as the biological father. He argued the proposed changes were in Bethany's best interest because she was not currently in an adoptive home and SSA's efforts to locate an adoptive home had been unsuccessful.

Minor's counsel disagreed with father's requests.

On April 27, May 3, and May 10, 2010, father failed to appear at the continued hearing on his section 388 petition and paternity claim and on Bethany's section 366.26 permanency plan. On May 3, the court held a hearing on father's section 388 petition. Despite father's absence, his counsel did not request a continuance; she stated she had no testimonial evidence to offer on his behalf. After listening to the arguments of all counsel (including Bethany's counsel, who opposed father's request for presumed fatherhood status), the court took the matter under submission.

At the May 18 continued hearing on father's section 388 petition and paternity claim and on Bethany's section 366.26 permanency plan, father's counsel moved for a continuance due to father's absence; the attorney said he had "no way to contact" father. The attorney had learned father might be in a convalescent hospital. The lawyer had checked with some hospitals, but to no avail. Father had not left his attorney any voicemail. The court denied the continuance motion, noting it had no information as to when father's appearance could be effected, if ever.

The court denied father's section 388 petition, finding insufficient evidence that (1) father was a presumed father under Family Code section 7611, subdivision (d) (Fam. Code, § 7611(d)), or (2) "'sufficiently and timely demonstrated a full commitment to his parental responsibilities'" within the meaning of Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849-850 (Kelsey S.). The court found SSA exercised due diligence and conducted a thorough investigation to try to locate and notice father. The court further found granting father's section 388 petition was not in Bethany's best interest. The court also terminated father's visitation rights, finding such termination to be in Bethany's best interest. Under section 366.26, the court found it likely Bethany would be adopted and terminated father's parental rights.


Substantial Evidence Supports the Court's Finding That Father is not Bethany's Presumed Father

Father contends the court erred by declining to declare him the presumed father of Bethany. He claims that, once he learned of Bethany's existence, he promptly demonstrated a willingness to assume full parental responsibility for and custody of the child. He relies on the following evidence: (1) his desire, expressed several times to SSA, to have Bethany reside with him; (2) his alleged plan to move into a two-bedroom apartment; (3) his initial visit with Bethany to which he brought toys and which the foster mother said went "really good"; and (4) his statement to SSA that he would fight any adoption plan for Bethany.

We apply the substantial evidence test in reviewing the court's finding that father is not Bethany's presumed father. (In re A.A. (2003) 114 Cal.App.4th 771, 782.) "In doing so, we are required to view the evidence in the light most favorable to [the court's] determinations. We draw all reasonable inferences, and resolve conflicts in the evidence, in favor of the trial court's findings, and we do not reweigh the evidence." (Ibid.)

The Uniform Parentage Act of 1973 (Fam. Code, § 7600 et seq.) "'provides a comprehensive scheme for judicial determination of paternity'" and applies in dependency proceedings (as well as private adoption cases, paternity disputes, custody awards, and support enforcement). (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050; In re Jesusa V. (2004) 32 Cal.4th 588, 603; Fam. Code, § 3010.) In a dependency case, only a presumed father is entitled to reunification services under section 361.5 (governing provision of such services after a child is removed from a parent's custody) or custody of a child under section 361.2 (governing placement of a child with a non-custodial parent following the child's removal from a custodial parent). (In re Zacharia D. (1993) 6 Cal.4th 435, 439 (Zacharia D.).) Here, father sought presumed father status to obtain custody and/or services.

Family Code section 7611 governs the requirements for presumed fatherhood and, inter alia, establishes six categories of rebuttable paternity presumptions. The only relevant category here (where father is an unwed biological father who did not try to marry mother) is Family Code section 7611(d), which provides that a man is a presumed father if "[h]e receives the child into his home and openly holds out the child as his natural child." Thus, the two conditions for Family Code section 7611(d) presumed fatherhood are: (1) a man's open and public acknowledgment of paternity, and (2) his taking the child into his home. (In re A.A., supra, 114 Cal.App.4th at p. 782.) To meet the condition of receiving the child into his home, a man must physically (not just constructively) bring the child into his residence. (Adoption of Michael H., supra, 10 Cal.4th at p. 1051.)

Here, it is undisputed that father never took Bethany into his home. Thus, he does not qualify as a statutory presumed father.

But father asserts he tried to receive Bethany into his home, but was thwarted by SSA's mandate that he move out of the paternal aunt's apartment before Bethany could be placed there. In Kelsey S., supra, 1 Cal.4th 816 (a private adoption case), "the court recognized a man attempting to satisfy the 'holding out' requirement for presumed father status 'may have been restricted, both legally and as a practical matter, in his ability to act fully as a father.'" (In re Jerry P. (2002) 95 Cal.App.4th 793, 806.) In Kelsey S., a biological father sought custody of an infant within two days of its birth. (Kelsey S., at p. 822.) The mother, however, wanted to place the baby for adoption. (Id. at p. 821.) The father participated in the custody, adoption, and paternity proceedings from their inception. (Id. at p. 836.) The mother and a court order (as well as the prospective adoptive parents, allegedly) prevented the father from bringing the baby into his home. (Id. at p. 825.) The trial court held the father was not a presumed father under Family Code section 7611(d)'s predecessor statute.*fn3 (Kelsey S., at p. 823.) Therefore, the baby could be placed for adoption without the father's consent, if the court found adoption was in the child's best interest.*fn4 The trial court found adoption was in the child's best interest and terminated the father's parental rights. (Kelsey S., at p. 823.) The Court of Appeal affirmed the judgment. (Ibid.)

Our Supreme Court reversed, holding that Family Code section 7611(d)'s predecessor statute "and the related 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." (Kelsey S., supra, 1 Cal.4th at p. 849.)

Significantly, Kelsey S. protection applies to "an unwed father [who] promptly comes forward" and "has sufficiently and timely demonstrated a full commitment to his parental responsibilities." (Kelsey S., supra, 1 Cal.4th at p. 849, italics added.) Our Supreme Court stated: "Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit." (Ibid, italics added.) "[W]hen a biological father promptly comes forward, acknowledges paternity . . . , and seeks legal custody, the problem of locating the father simply does not arise." (Id. at p. 835.)

Similarly, in Zacharia D., supra, 6 Cal.4th at page 451, our Supreme Court recognized that in the dependency context, the issue might arise as to "whether the statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S." (Italics added.) Indeed, Zacharia D. made clear that a biological father's unreasonable delay is not excused by his ignorance of the child's existence: "While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the father's failure to ascertain the child's existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any 'opportunity to develop that biological connection into a full and enduring relationship.'" (Id. at p. 452.) "Nothing in Zacharia D. suggests that a constitutional issue would arise when an unwed father does not come forward until late in the process, as when the dependency case is already in permanency planning. When a dependency case is in permanency planning, the focus has shifted to the child's needs for permanence and stability . . . ." (In re Vincent M. (2008) 161 Cal.App.4th 943, 958.) As is often stated, time periods that may seem short to an adult "can be a lifetime to a young child. Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)

Here, father failed to meet his burden to prove he promptly held out Bethany as his daughter and provided for her emotionally and financially. By the time father learned of Bethany's existence, she was already four years old. Prior to receiving notice from SSA, he had apparently made no efforts to discover whether his former relationship with mother had resulted in a child. In addition, father failed to show he was able (or even in some respects, willing) to provide emotional and financial support for Bethany. For example, father failed to show up for most of his scheduled visits with Bethany and, at the ones he did attend, he did not interact closely or positively with her. He refused to disclose the details of his health problems and hospitalizations. He provided no evidence he actually attended or even enrolled in a parenting course, nor any evidence of his actual income from creating commercials and slogans against drunk driving. In sum, substantial evidence supports the court's finding father failed to meet the requirements to qualify as Bethany's presumed father.

The Court did not Abuse Its Discretion by Denying Father's Section 388 Petition

Father contends the court abused its discretion by denying his request, expressed in his section 388 petition, that Bethany be placed with him. His argument is twofold. First, he contends the court erred by failing to consider whether father was entitled to placement as a non-custodial parent under section 361.2. Second, he claims Bethany's placement with him was in the child's best interests.

To succeed on a section 388 petition a petitioner must establish "by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "The rule is the same whether his paternity was concealed from him or not." (In re Vincent M., supra, 161 Cal.App.4th at p. 947). "The grant or denial of a section 388 petition is committed to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly established." (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)

We address first father's section 361.2 argument. Under section 361.2, when a court orders removal of a child from a custodial parent and determines that a non-custodial parent wishes to assume custody, the court must place the child with the non-custodial parent unless it finds the placement would be detrimental to the child. Section 361.2, however, "applies only when the child is first removed from the custodial parent's home" (Zacharia D., supra, 6 Cal.4th at p. 439) -- here, February 2006. In addition, only a presumed father is entitled to custody of his child under that section. (Ibid.) Moreover, father forfeited this argument by failing to raise it below.

Father's second argument is also without merit. In contending Bethany's placement with him was in her best interest, father essentially argues she is unlikely to find anything better. He asserts he is the only person who really wanted the child, she had been in many placements, and she had trouble bonding with caregivers. He ignores the several adoption assessments that found Bethany to be adoptable and the reality that the adoption process was dormant while he sought placement. As the court observed, "father's physical health, psychological health, past parenting history, and conduct during the visitation sessions" showed that granting his section 388 petition would not serve Bethany's best interests. The court noted Bethany had had a "long and tortured . . . journey through the dependency system" since the age of three months and needed "the opportunity for permanency and stability now, without any further delay."

The court did not abuse its discretion by denying father's section 388 petition.


The postjudgment orders are affirmed.




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