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In Re A. S. , A Person Coming Under the Juvenile Court Law. v. J. M

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


March 1, 2011

IN RE A. S. , A PERSON COMING UNDER THE JUVENILE COURT LAW. PLACER COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
J. M., DEFENDANT AND APPELLANT.

(Super. Ct. No. 53002665)

The opinion of the court was delivered by: Blease, Acting P. J.

In re A.S.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this case the juvenile court had to decide which of two alleged fathers, J.M. or J.C., was minor A.S.'s presumed father. J.M. appeals from the court's finding in favor of J.C. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 6, 2008, respondent Placer County Department of Health and Human Services (the Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b), (c), and (g)*fn1 as to A.S. (a female born in 2004) and Z.S. (a male born in 1997),*fn2 alleging:

Mother (D.S.) tested positive for methamphetamine three times from July 21, 2008, to August 1, 2008.

Mother had a history of failing to protect Z.S., who suffered from severe developmental delay and was violent. On three occasions he escaped from mother's home and was found outside unsupervised. He was now physically aggressive and out of her control.

Mother had a history of engaging in domestic violence. Appellant J.M., the minors' alleged father, was currently in prison due to alleged incidents of domestic violence in 2002, 2003, and 2006. Mother and her current live-in boyfriend (who is not J.C.) engaged in domestic violence on July 10, 2008, while the minors were in the home; the boyfriend was arrested for parole violation. Mother had been offered domestic violence treatment but had failed to engage in services.

At the detention hearing on August 8, 2008, the juvenile court detained the minors. The court found appellant was the minors' presumed father, having been married to mother when both minors were born. However, because mother and J.C. stated in open court that J.C., not appellant, was A.S.'s father (though J.C. and mother had never married and his name was not on the birth certificate), the court also found that J.C. was an alleged father of A.S., appointed counsel for him, and ordered paternity testing.

On September 23, 2008, the Department filed an amended section 300 petition, alleging that J.C. was A.S.'s "father" but that he abused controlled substances.

In its jurisdiction/disposition report, the Department recommended reunification services for J.C. as to A.S.*fn3 The report requested that the presumption of appellant's paternity as to A.S. be rebutted and that J.C. be named her presumed father. The paternity test had not excluded him. Since he had learned he was her biological father, around one year ago, he had held her out as his child, brought her into his home for overnight visits, and sometimes had her for three or four days at a time. He had provided for all her needs so far as he could.

Mother said she had known J.C. for several years before they started dating; he lived across the street from appellant's mother. Mother and J.C. were together for a year and a half, then broke up, then got back together off and on for a couple of months, then stopped seeing or talking to each other for three years. She finally told him about A.S. last year, when A.S. was three; after that, they arranged for him to get to know her slowly.

J.C. said he and mother met around eight years ago when they lived across the street from each other; she was living with her own mother then, after separating from appellant. J.C. said he and mother began seeing each other two months later; their relationship lasted two and one-half years, including one year in which they lived together off and on. When he learned about A.S., "it changed everything. That's why I went to rehab." He asked if there was any way A.S. could live with him. He had gone into a substance abuse program on August 16, 2008, had tested negative ever since, and attended NA classes twice a week.

A.S. appeared very comfortable with J.C. He was forthright during his interview and properly concerned about his past mistakes, which included a significant criminal and methamphetamine history.

At the initial jurisdiction/disposition hearing on September 24, 2008, appellant was present but was removed from the courtroom after wrestling with the bailiffs and saying "F-- you" to them and to the juvenile court. The court found J.C. was the biological and presumed father of A.S. and set aside the previous finding as to appellant.*fn4

On November 13, 2008, the juvenile court held the final jurisdiction/disposition hearing, which did not address paternity. The court sustained the allegations of the amended section 300 petitions (except for the allegation under subdivision (g), dismissed by the Department). The court ordered the minors placed in the home of their grandparents (appellant's parents, where they were already detained), ordered 12 months of reunification services for mother as to both minors and for J.C. as to A.S., and denied services to appellant.

On March 6, 2009, A.S. was placed with J.C.

On March 11, 2009, appellant filed points and authorities (which the juvenile court apparently deemed a motion for reconsideration) to support his paternity claim as to A.S. The pleading alleged that the presumption favoring J.C. under Family Code section 7611 was rebutted by a paternity judgment filed June 16, 2004, which determined that appellant was A.S.'s father. (Fam. Code, § 7612, subd. (c).)

At a hearing held on the date appellant's points and authorities were filed, the juvenile court said: "[W]ith respect to the court putting this matter on with respect to the paternity judgment findings, two conflicting paternity judgment findings in A[.S.]'s case. I have received here today a memorandum of points and authorities in support of that motion [sic] from [appellant]. Or I should say memorandum in support of [appellant]'s paternity claim, presumed father over A[.S.]" The court and the parties agreed to put the matter over for a contested hearing on paternity at a later date.

On April 22, 2009, appellant filed a copy of the "Judgment Regarding Parental Obligations" entered against him on June 16, 2004, along with a request for judicial notice and a motion in limine seeking to bar any other party from challenging, impeaching, or setting aside the judgment. The judgment names appellant as the father of both minors and obliges him to pay child support for both.

On July 14, 2009, the Department requested that at the pending 12-month review hearing the juvenile court dismiss the dependency as to A.S., with joint physical and legal custody to be awarded to mother and J.C., who should be named the primary care providers. The Department's status review report indicated that mother and J.C. were fully complying with their case plans and A.S. was thriving.

On September 23, 2009, the juvenile court held a combined 12-month review hearing and evidentiary hearing on paternity issues.

Appellant testified as follows:

He was married to mother from 2000 until 2009. After his release from custody in late February 2003, he lived with her from then until sometime in July 2003. In early June 2003 she tested positive for pregnancy; he believed the unborn child was his. He and mother separated in July 2003. In September 2003 she returned to live with him at his mother's house. They continued to live there until his arrest in December 2003 for domestic violence against mother.

When he learned of the pregnancy, he and mother spoke about supporting the child, and he offered to take care of the child. Asking mother to move in with him in September 2003 was part of that offer of support.

He was in custody when A.S. was born. He never denied paternity. He remembered signing a paper, which he believed was for paternity or support.

In December 2004, he was released from custody and went to live with his parents. A couple of weeks later, he and mother resumed living together. A.S. called him "Dad." He called her "my little angel." He and mother jointly parented both minors. He had the names of mother and the minors tattooed on his body.

He admitted that, during a conversation in jail, J.C. had told him that mother had said J.C. was A.S.'s father. He did not believe it, however; he "figured maybe she was using him for money or doing something because that's just how she is." He had suspected that mother and J.C. were having an affair in 2001 or 2002 because friends had said something and he found a message for J.C. on mother's voice mail, but he did not think they were seeing each other at the time of A.S.'s conception.

Mother testified as follows:

She became pregnant with A.S. in May or June 2003, when she was living at "Jeannie's house." She lived there from February through August 2003 with Z.S. Appellant did not live there; he was living at his mother's house.

At that time, mother was having an affair with J.C. She had more than one sexual encounter with him. He was an overnight guest in her home during the period when A.S. was conceived.

There were no periods when she and appellant lived together as a family with both minors. He was out of custody for only 16 days before he was arrested again, and they did not live together during that time. He was violent with her both while she was pregnant with A.S. and after A.S. was born.

After appellant's release from custody in February 2003, he was supposed to be doing supervised visits with Z.S. He came over at other times, but mother would not let him in.

Mother moved in with appellant at his mother's house in September 2003 and lived there with him until his next arrest in December 2003. She was there when her pregnancy was confirmed. So far as she could remember, she did not take a pregnancy test in June 2003; she waited until after she had missed her period for three or four months. Due to posttraumatic stress disorder induced by domestic violence, her memory was not good.

After A.S.'s birth, appellant stayed with mother at her uncle's house, where she was house-sitting in her uncle's absence for seven to 14 days in 2005. Appellant did not live there; he just stayed there whether she liked it or not. He was arrested there. She believed he was currently incarcerated for 18 years.

Dora Jean Myers testified as follows:

She was the "Jeannie" in whose apartment mother lived from January until August 2003. Myers had met mother through her own daughter, who worked with her. Myers's daughter was staying in the apartment when mother moved in, but Myers was living elsewhere at the time because of problems with her daughter. At some point Myers's daughter moved out and Myers returned to the apartment; mother stayed there until August, when she had to leave because she was not on the lease. Myers would not have known if mother was having overnight guests during the time Myers was staying elsewhere.

Appellant never lived there, though he dropped in sometimes. She occasionally saw him there when she came by to visit her cats.

J.C. testified as follows:

He and mother were having a sexual relationship during the period March through June 2003, while she was living at Myers's apartment and he was living with his mother. He would visit mother at least every other day and sometimes spend the night. He never saw appellant there, or any sign that any adult male was living there.

He knew mother and appellant were married, but they had been separated for a while. She told J.C. she was trying to stay away from appellant and did not intend to reconcile with him. J.C. found out while he was incarcerated with appellant that mother had moved back in with him in September 2003. Before that, appellant (who was living across the street from J.C. at the time) had confronted him about his relationship with mother; J.C. "had to beat him up a couple of times."

A.S. lived with J.C. now; he held her out as his daughter and intended to raise her. Even before the dependency began, she spent the night at his home three times a week. From the time mother told him he was the father, he started staying over at mother's place to get to know A.S., which took about two months. After that, A.S. came over more and more often, until the court finally placed her with him.

Someone told J.C. shortly after A.S. was born that she looked just like him and he ought to look into it. Until then, he had not realized he might be her father. He did not follow up at the time because he was not speaking with mother then and had no way of contacting her. He began to hold A.S. out as his child as soon as mother told him she was, when A.S. was three years old.

After hearing argument, the juvenile court ruled in J.C.'s favor on the following grounds:

Appellant was not a presumed father under Family Code section 7540 because he was not cohabiting with mother at the time of A.S.'s conception. In reaching that conclusion, the court relied mainly on the "corroborating" testimony of J.C. and Myers, which was "very credible in this matter and very compelling," rather than on that of mother or appellant, whose stories had troubling gaps and discrepancies.

The child support judgment against appellant did not establish his paternity because the family court was not asked to determine that issue. As to A.S., the Department of Child Support Services asked the court only to find that father was the obligor for support purposes. (By contrast, an earlier complaint filed as to Z.S. had expressly asked the court for a paternity finding.)

Since appellant did not meet the presumed father test of Family Code section 7540 and the support judgment did not determine paternity, the next step was to examine the conflicting presumptions of paternity found in Family Code section 7611 in light of the balancing test prescribed by Family Code section 7612. Applying this test, J.C. had the better claim.

Under Family Code section 7611, subdivision (a), appellant qualified as a presumed father because he was married to mother at the time of A.S.'s conception. Under Family Code section 7611, subdivision (d), J.C. qualified as a presumed father because he welcomed A.S. into his home and held her out to the world as his daughter.

Under Family Code section 7612, if presumptions conflict, the presumption founded on the weightier considerations of policy and logic controls. Here, that presumption was the one favoring J.C. Not only was he the biological father and the one who held A.S. out to the world as his daughter, but he was bonded to A.S. and appellant was not. Moreover, appellant would remain incarcerated throughout A.S.'s minority.

For all the above reasons, the juvenile court reaffirmed its prior finding that appellant's parental presumption had been rebutted. The court subsequently entered an order granting legal and physical custody of A.S. to mother and J.C. and establishing J.C.'s residence as A.S.'s primary residence.

DISCUSSION

I

Respondent contends that we must dismiss this appeal because it was taken from final and non-appealable orders. Respondent is mistaken.

Respondent reasons: 1. The order at the dispositional hearing which originally declared J.C. the presumed father became final when appellant failed to perfect a timely appeal. 2. Orders made at a periodic status review, if that review considers matters already determined at the dispositional hearing, are non-appealable. 3. The only way to obtain review of a prior final order is to petition to modify the order under section 388, which was not done. 4. Here, instead, the juvenile court reexamined the paternity issue by reconsidering its dispositional orders; therefore its new order was in the nature of an order denying reconsideration, which is also non-appealable. The argument fails at every step.

Respondent misconstrues the nature of finality in dependency proceedings. Although a dispositional order is deemed the "final judgment" for purposes of appeal (§ 395), it is not truly final until the dependency is concluded. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 114, fn. 18.) So long as the juvenile court retains jurisdiction, it can reconsider, change, or modify any prior interim order sua sponte, either by statute under section 385 or on its own inherent authority under article VI, section 1, of the California Constitution. (Id. at pp. 110-117.) Where the juvenile court has done so, its new order is therefore appealable as an "order after judgment" so long as the court retains jurisdiction, just as the original order was. (§ 395.)

II

We now turn to the merits of appellant's attack on the order. Appellant contends the order was not supported by substantial evidence because he proved he was cohabiting with mother during the time of A.S.'s conception and because his child support judgment conclusively adjudicated his paternity. We disagree.

"The dependency system recognizes four classes of fathers: alleged, natural, presumed, and de facto. [Citation.] . . . A presumed father is 'one who "promptly comes forward and demonstrates a full commitment to his paternal responsibilities -- emotional, financial, and otherwise . . . ."' [Citation.]" (In re E.O. (2010) 182 Cal.App.4th 722, 726.)

"Only presumed fathers are entitled to reunification services and to possible custody of the child. [Citation.] In order to become a presumed father, a man 'must' fall within one of the categories enumerated in Family Code section 7611. [Fn. omitted.] [Citations.]" (In re E.O., supra, 182 Cal.App.4th at pp. 726-727.)

Where an appellant attacks a juvenile court order on the ground of insufficient evidence, we apply the substantial evidence standard of review, under which we view the evidence most favorably to the judgment and do not reweigh the evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

Appellant first cites Family Code section 7540, which creates a conclusive presumption that "the child of a wife cohabiting with her husband, who is not impotent or sterile, is . . . a child of the marriage." However, the juvenile court found that appellant failed to prove he was cohabiting with mother when A.S. was conceived. So far as appellant asks us to reweigh the evidence and set aside the court's factual findings, substantial evidence review does not allow us to do so. Therefore, appellant's claim that the court should have accepted his testimony rather than mother's testimony on this issue is not cognizable.

In any event, as stated above, the court was persuaded not by mother's testimony alone, but by that testimony in conjunction with the corroborating testimony of J.C. and Myers (and also, impliedly, by the lack of corroboration for appellant's story).*fn5 Substantial evidence supported the court's finding.

Appellant next cites Family Code sections 7612, subdivision (c), and 7636, asserting that the support judgment against him conclusively determined his paternity of A.S. under these provisions. We agree with the juvenile court that it did not.

Family Code section 7612, subdivision (c), provides: "The presumption [of paternity] under [Family Code] Section 7611 is rebutted by a judgment establishing paternity of the child by another man." Family Code section 7636 provides: "The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes except for actions brought pursuant to Section 270 of the Penal Code."

As the juvenile court found, the child support judgment against appellant did not "establish[]" his paternity of A.S. within the meaning of these provisions, because that issue was not adjudicated in the family court proceeding that led to the judgment. According to the juvenile court, which reviewed all the documents filed in the family court proceeding, the complaint did not inform the family court that there was a dispute as to A.S.'s paternity or request a determination thereon, it simply named appellant as the obligor because he was married to mother when A.S. was born. Appellant cites no contrary evidence. Thus, J.C.'s competing claim to paternity was not before the family court.

Furthermore, as the court noted in In re E.O, supra, 182 Cal.App.4th at pages 727 and 728, a paternity judgment "is designed primarily to settle questions of biology and provides the foundation for an order that the father provide financial support. . . . Presumed father status, by contrast, is concerned with a different issue: whether a man has promptly come forward and demonstrated his '"full commitment to his paternal responsibilities -- emotional, financial, and otherwise."' [Citation.]" In this case, unlike In re E.O., the judgment on which appellant relies did not even "settle questions of biology," which were resolved only later by J.C.'s paternity testing. Like the court in In re E.O., supra, we conclude it would be absurd "to conclude that a paternity judgment that is focused narrowly on biological and financial issues is determinative on subsequent issues that are unrelated to and far beyond its scope." (Id. at p. 728.)

Because the provisions discussed so far do not aid appellant, the question comes down to the conflicting presumptions of paternity under Family Code section 7611 and the tiebreaker provided by Family Code section 7612, subdivision (b), as the juvenile court found. We agree with the juvenile court that these provisions, read together, compel a determination in favor of J.C.

Family Code section 7611, subdivision (a), creates a presumption of paternity if a man and the child's mother "are or have been married to each other and the child is born during the marriage"; this provision favors appellant. Family Code section 7611, subdivision (d), creates a presumption of paternity if a man "receives the child into his home and openly holds out the child as his natural child"; this provision favors J.C. To resolve the conflict, we turn to Family Code section 7612, subdivision (b), which provides: "If two or more presumptions arise under Section . . . 7611 that conflict with each other, . . . the presumption which on the facts is founded on the weightier considerations of policy and logic controls." Here, that presumption is the one stated in Family Code section 7611, subdivision (d).

In determining who should be declared the presumed father in this dependency proceeding, with the right to reunification services and possible custody of A.S., appellant's now-dissolved marriage to mother counts for very little as against J.C.'s acts of receiving A.S. into his home and holding her out to the world as his. Reunification services and custody are meant to benefit persons who have shown--by deeds, not merely by words--that they wish to be parents, and are available to act as such. J.C. meets those tests. Appellant, who has no existing bond with A.S. and whose long-term incarceration will prevent him from being able to act as a parent before she turns 18, does not.

Furthermore, since mother appears to be making steady progress toward reunification, a presumed father must be able to work with her in parenting A.S. J.C. has shown he can do so. It is hard to imagine that appellant, who is incarcerated partly due to repeated acts of violence against mother, and whose testimony showed that he holds her in contempt, could ever do likewise.

Appellant asserts to the contrary that J.C. did not "immediately step forward and assert paternity with respect to A[.S.]," whereas he himself "willingly accepted paternity of A[.S.] and tried to remain involved in her life." Appellant ignores key evidence and views the rest most favorably to himself, in violation of the substantial evidence standard of review.

Appellant notes that J.C. admitted he had reason to think A.S. might be his daughter soon after her birth, but did not act on this possibility for three years. However, appellant omits J.C.'s explanation for this lapse, which the juvenile court impliedly credited: he was not seeing or speaking to mother at that time, had no way to contact her, and "didn't know how to go about" investigating the matter.

Appellant also asserts: "[J.C.]'s dilatory conduct hardly merits the paternity presumption set forth in Family Code section 7611, subdivision (d)." But this provision on its face does not impose a timeliness requirement, and appellant cites no authority that reads such a requirement into it. Appellant's bald assertion is therefore unpersuasive. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

As to his own conduct in supposed compliance with Family Code section 7611, subdivision (d), appellant cites only his own testimony, which conflicted on critical points with that of mother, J.C., and Myers, and which the juvenile court found unreliable. We do not reweigh the court's credibility findings.

For all the above reasons, appellant's challenge to the juvenile court's paternity determination fails.

DISPOSITION

The judgment (order determining paternity) is affirmed.

We concur: HULL, J. ROBIE, J.


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