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

August 18, 2011

IN RE J.H., A PERSON COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
TYRONE M., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of Los Angeles County. Elizabeth Kim, Referee. (Los Angeles County Super. Ct. No. CK83219)

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

CERTIFIED FOR PUBLICATION

Affirmed in part, reversed in part, and remanded.

Tyrone M. appeals from a juvenile court order denying his request that he be designated the presumed father of minor J.H and deeming him only an "alleged biological father." We find the juvenile court's parentage ruling incomplete in that it failed to determine biological paternity and therefore reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2010, DCFS detained then two-year-old J.H., and his eight-month-old brother. In the first version of the dependency petition, DCFS alleged mother had suffered domestic violence at the hands of her male companions, George H. and Frederick B. According to the petition, in August 2009, George H. hit mother and fractured her face in four places. As a result of this attack, George H. was arrested and charged with inflicting corporal injury to a spouse or cohabitant. The petition also alleged that mother's abuse of marijuana rendered her incapable of providing the children with regular care and supervision, and that mother failed to take psychotropic medication to manage her mental and emotional problems. The petition also alleged that Tyrone M., "J.H.'s father," failed to provide him with the necessities of life, and that Tyrone M.'s whereabouts were unknown. The detention report noted George H. was identified as J.H.'s father on J.H.'s birth certificate. George H. was incarcerated.

Following J.H.'s removal from mother's custody, Tyrone M. participated in a Team Decision Meeting and subsequently appeared at the July 2010 detention hearing. He filed a Judicial Council form JV-505: Statement Regarding Parentage (JV-505 form). In the JV-505 form, Tyrone M. indicated he believed he was J.H.'s father and requested that the court enter a judgment of parentage and declare him J.H.'s presumed father. He stated he had told his friends, fianceee, adult son, a social worker, and police officers that J.H. was his son. He also represented that he saw J.H. every other day and changed his diapers and clothes. He fed him, read to him, taught him his numbers, and the two played together. Tyrone M. stated that every weekend J.H. went to the place where Tyrone M. refereed basketball. He gave mother money to purchase necessities on several occasions. Tyrone M. also reported J.H. had a relationship with his adult son.

Mother submitted a paternity questionnaire, which the juvenile court described for the record at the detention hearing. Mother identified Tyrone M. as J.H.'s father. Mother said Tyrone M. was not present at J.H.'s birth and he did not sign the birth certificate. She was neither married to Tyrone M. at the time of J.H.'s conception or birth, nor were they living together. But mother claimed Tyrone M. had held himself out to be J.H.'s father and provided support, although he had not received J.H. into his home. Mother's counsel explained that Tyrone M. visited "semi-consistently," but he and mother agreed on a place for visits to take place. Mother admitted she was married to someone else at the time of J.H.'s birth and she was still legally married to that man.

The court postponed a hearing on parentage until mother's husband could be given proper notice. Tyrone M. requested that the court find him to be J.H.'s presumed father, or, alternatively, a Kelsey S. father.*fn1 Later in July, DCFS conducted a prerelease investigation regarding Tyrone M. Tyrone M. had a history of drug use, but he claimed he had been sober for seven years. He also had a criminal history, which included a 1996 felony conviction for rape of a spouse by means of force or fear, with a resulting three-year prison sentence. As a result of the conviction, he was required to register as a sex offender. Tyrone M. told DCFS he could provide J.H. with supervision and a safe home. He had moved into a larger apartment to have more space for J.H. DCFS did not recommend that J.H. be released to Tyrone M. at that time due to a lack of drug test results and his criminal history.

In August 2010, DCFS filed a jurisdiction and disposition report. As reflected in the report, Tyrone M. told DCFS he gave mother money for whatever J.H. needed. Tyrone M. stated:

"So whatever necessities [J.H.] needed I made sure she had the money to get. I didn't go buy it but I did provide her with the money to get it. I would see my son just about on a daily basis. When he was with me I would make sure he was well taken care of; I played with him and I tried to teach him his numbers and how to read. In the report it says that I was in his life and providing for him. But then [mother] tried to say that he wasn't my son. But when it comes to my kids I don't play; I am a stickler for education. I have never denied that [J.H.] was my son. I have been in his life since birth and even before I found out that he was my son. [Mother] and I were friends and I was in her life as a support but one day we got to talking and I pulled her aside and told her that based on what she was saying it may be a possibility that I was his father. We were never together but we had a one night stand that resulted in my son. But when I found out he was mine I began to provide for him."

Tyrone M. admitted that George H. was "there for [J.H.] when he was born," but also stated that George H. beat mother when she was still pregnant with J.H.'s brother. Tyrone M. said he would do anything to get J.H. back. He conceded he had not completed a substance abuse rehabilitation program, but indicated that he quit using drugs on his own seven years earlier.*fn2

George H. denied that he had beat mother. He said J.H. "practically stayed in [his] custody all the time" because mother was in school. George H. further claimed: "When I came home from prison [mother] was pregnant already and I took care of her and when [J.H.] was born I signed his birth certificate and loved him as if he were my own and to give him a good life. I have no idea who this Tyrone person is. This is all news to me because she told me the father didn't want anything to do with her or the baby." He also told DCFS: "I love both boys but I am here in prison and I have 3 more years to go. I will be home in 2013 but a lot can happen in that time. I think the boys should be placed in a home where they can be well taken care of and safe. I suggest my friend Jermaine [K.]. I don't have his information on me but I will write you and give you all of the information."

DCFS recommended that although J.H. and his brother could not safely be returned to their "parents," mother and Tyrone M. should receive reunification services. DCFS also recommended that the court deny George H. reunification services because he was incarcerated and was not scheduled to be released until 2013, after the end of the reunification period.

At a hearing in August 2010, Tyrone M. asked the court to order a DNA test so that he might assert his biological paternity of J.H. The court did not rule on the request, stating that it would "revisit that issue." At the next hearing in September 2010, Tyrone M. again requested that the court order DNA testing as to J.H. The court stated it would not order a DNA test at that point. In October 2010, the juvenile court adjudicated the petition. The court sustained a revised petition which contained no allegations regarding Tyrone M. or George H. Instead, the sustained petition asserted jurisdiction based only on the allegations that mother's drug use and her untreated mental and emotional problems prevented her from adequately caring for J.H. and his brother. The court permitted Tyrone M. to have monitored contact with J.H. and set a hearing to determine parentage. The court did not order Tyrone M. to participate in any services, but noted the DCFS recommendation that "in the event that you are going to request that you be considered the presumed father of [J.H.] that you participate in a parent-education course and also to submit to random drug testing." At this hearing, George H. requested that he be considered J.H.'s presumed father.

George H. subsequently submitted a JV-505 form regarding J.H. George H. represented that J.H. lived with him from J.H.'s birth in March 2008 until August 2009, and that he told family, friends, and acquaintances that he was J.H.'s father. George H. reportedly diapered, bathed, clothed, cradled, and sang to J.H., and did "everything a father does." George H. also stated he had provided financial and emotional support for J.H. J.H. had not met George H.'s family because they lived out of state, but George H. had sent pictures of J.H. to his family. George H. concluded: "I love [J.H.] dearly and want to play a significant role in his life. I wish to be designated the presumed father." In an interview with DCFS, George H. appeared to recant his earlier statements that he did not know Tyrone M., and that he was uninvolved in the domestic violence with mother. He explained: "I knew [J.H.] was not mine because she was already pregnant when I came home from prison. I took him as my own because I love kids. [Tyrone M.] was a good friend of mine . . . . I should have used better judgment (regarding the domestic violence with [mother]) but I ended up here. But now it is really about the kids. I took good care of [J.H.] while I was there. I am 42 years old and things change in people's lives."

In early November 2010, the juvenile court held a hearing to determine paternity issues. Mother testified. Mother said she did not give Tyrone M. an honest answer about whether he was J.H.'s father because she was afraid of George H. It was only after George H. went to prison that she was able to "speak the truth about [J.H.'s] true parentage." Mother testified that because of her fear of George H., she and Tyrone M. "never really established to where he could communicate with [J.H.]; so there was never a bond built." Mother said she and Tyrone M. came to a mutual decision that he would not have much contact with J.H. However, mother said that Tyrone M. was undoubtedly J.H.'s father. Mother testified that before J.H. was born, she had a conversation with Tyrone M. suggesting that the baby might be his. Tyrone M. helped mother a little financially while she was pregnant. After J.H. was born, Tyrone M. gave her money for J.H. on a few occasions, and sometimes bought diapers. Tyrone M. did not assist her with prenatal care or go to doctor's appointments with her. Tyrone M. also did not ask that he be considered J.H.'s father or sue for paternity. But mother explained: "[T]here was conversations of him being recognized as the father. Before [George H.'s] incarceration, it was a secret that I carried with me. It wasn't until after [George H.] was incarcerated, and I didn't fear him anymore that it ...


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