IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 3, 2012
IN RE A.R., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
J.R., DEFENDANT AND APPELLANT.
(Super. Ct. No. JD231197)
The opinion of the court was delivered by: Nicholson , Acting P. J.
In re A.R.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
J.R., the alleged father of minor A.R., appeals from the juvenile court's order which declared him not the minor's presumed father. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 28, 2010, Sacramento County Department of Health and Human Services (the Department) filed a petition under Welfare and Institutions Code section 300 as to A.R., a 22-month-old female, alleging: On or about December 24, 2010, the minor became ill after ingesting water laced with methamphetamine. Mother (S.G.) failed to seek immediate medical care. After the minor's grandmother called 911, the minor was hospitalized and tested positive for methamphetamine. Mother and J.R. were long-time methamphetamine users. J.R. had suffered multiple criminal convictions related to drug use and/or possession, resulting in extended periods of incarceration and at the time was facing charges of possession of a controlled substance for sale.
According to the detention report, J.R. did not live with mother and was in prison when the minor was born, but identified himself as the father.*fn1 The minor bore his last name. Mother did not have the minor's birth certificate, but believed J.R.'s name was on it.
The minor was placed with the maternal great-aunt and great-uncle. J.R. would like the minor to be placed with a non-related couple who were among his best friends.
Mother had lost custody of four other children, all now adopted.
At the prejurisdictional status hearing, mother and J.R. appeared and received appointed counsel. J.R. stated that the results of his paternity testing were not in yet, but he believed he was the minor's biological father because mother had told him he was. He considered the minor his child and tried to visit or call her every day.
The juvenile court deferred a presumed-father determination until J.R. had consulted with counsel and received the DNA results.
On the first day of the jurisdiction/disposition hearing, February 14, 2011, the juvenile court learned that DNA testing had excluded J.R. as the biological father. However, with mother's support, he sought to be declared the presumed father on the grounds that he had openly held out the child as his own and received her into his home. (Fam. Code, § 7611, subd. (d) [hereafter § 7611(d)].) He stated that he had had the minor in his custody at times since his release from prison, had brought her to his family's home, had claimed her as his own, and had financially supported her with diapers, clothing, and money. He admitted he had not literally taken her into his home, but claimed he had not had the opportunity to do so.
Because the Department indicated that it would file an amended Welfare and Institutions Code section 300 petition and there was no jurisdiction/disposition report yet, the juvenile court continued the matter for two weeks.
On the second day of the jurisdiction/disposition hearing, February 28, 2011, the juvenile court learned from a just-filed addendum report that mother was married. Mother stated she had not seen her husband since their separation in 2004 or 2005; she had tried to divorce him but could not find an address to serve the papers. She could not name anyone other than J.R. or her husband as a possible biological father. The court declared mother's husband to be the minor's presumed father.
The parties then argued J.R.'s section 7611(d) claim. J.R. explained that after his release from prison he did not have a place of his own, but was staying temporarily with a friend. (His biological family lived in Southern California.) He visited the minor when he could and indicated she called him "daddy." She had also visited him in prison.
Agreeing with the Department that this showing was insufficient under section 7611(d), the juvenile court ruled that J.R. was not a presumed father. The court also found that J.R.'s criminal history made him an unsuitable candidate for placement. Based on these findings, the court relieved J.R.'s appointed counsel.
The minute order of the hearing additionally states that the juvenile court has found J.R. not to be a party to the proceedings.
On March 2, 2011, J.R. filed a notice of appeal from "Findings and Orders made on February 28, 2011, where the court denied 7611(d) status to [J.R.]."
We must decide first whether the order at issue is appealable. We conclude that it is, although not for the reason J.R. gives.
In a dependency proceeding, the dispositional order is the judgment, and all orders made thereafter are appealable as orders after judgment. (Welf. & Inst. Code, § 395, subd. (a).) Here, however, the court's order was made before disposition, and no statute specifically makes a predispositional order on paternity appealable.
J.R. asserts: "A paternity finding made in the course of dependency proceedings is a final judgment, appealable pursuant to Welfare and Institutions Code section 395. (See, e.g., In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1116." But in the cited decision, the paternity finding was made long after disposition (id. at p. 1110); thus, the court did not consider whether a predispositional paternity finding would be appealable. And despite J.R.'s "[s]ee, e.g." citation signal, which is meant "to introduce opinions cited as examples of the stated proposition's application" (Cal. Style Manual (4th ed. 2000) § 1:4, p. 10), we have found no other decision that stands for the proposition stated by J.R.
Nevertheless, we shall exercise our discretion to deem the order appealable and reach the merits. Whether J.R. qualifies as a presumed father is an important question in need of prompt and final resolution. And since the court has declared J.R. a nonparty and relieved his appointed counsel, he cannot now raise this issue in any other way.
Father contends the juvenile court erred by finding he was not the minor's presumed father, because he promptly assumed his parental responsibilities as fully as the circumstances permitted. We disagree. A man who is not a child's biological father, is not married to the child's biological mother, and has not attempted to marry her, is presumed to be the natural father if "[h]e receives the child into his home and openly holds out the child as his natural child." (§ 7611(d); In re Nicholas H. (2002) 28 Cal.4th 56, 58.) J.R. did not satisfy the first prong of this test.
"A man who claims entitlement to presumed father status has the burden of establishing by a preponderance of the evidence the facts supporting his entitlement. [Citation.] 'Although more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, "there can be only one presumed father."' [Citation.]" (In re J.O. (2009) 178 Cal.App.4th 139, 147.)
"[O]nly a presumed father is entitled to custody or a reunification plan. [Citations.] An alleged father is not entitled even to appointed counsel, except for the purpose of establishing presumed fatherhood. [Citations.] Indeed, it is generally said that an alleged father's rights are limited to 'an opportunity to appear and assert a position and attempt to change his paternity status . . . .' [Citations.]" (In re J.O., supra, 178 Cal.App.4th at p. 147.)
An alleged father cannot satisfy section 7611(d) by "constructively" receiving a child into his home, but only by doing so physically. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051; see Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825-830 (Kelsey S.).) However, an alleged father's failure to bring the child physically into his home may be excusable under section 7611(d) if he sought to do so but was frustrated by forces beyond his control, such as the mother's actions to prevent it or the taking of custody over the child by a county department of social services. (In re Andrew L. (2004) 122 Cal.App.4th 178, 191; In re Jerry P. (2002) 95 Cal.App.4th 793, 807, 811; see Kelsey S., supra, 1 Cal.4th at p. 825.)
What matters is whether the alleged father has "'promptly come forward and demonstrate[d] a full commitment to his parental responsibilities -- emotional, financial, and otherwise . . . .' (Kelsey S., supra, 1 Cal.4th at p. 849; [accord], [In re] Zachariah D.  6 Cal.4th [435,] 450.) The focus is on whether the natural father 'has done all that he could reasonably do under the circumstances' to demonstrate his commitment to the child. (Kelsey S., supra, at p. 850; see also [In re] Julia U.  64 Cal.App.4th [532,] 541.)" (In re Andrew L., supra, 122 Cal.App.4th at p. 191, original italics.) Unfortunately, J.R. did not make this showing.
J.R. did not physically receive the minor into his home or show that he would have done so but for circumstances beyond his control. He testified that he could not bring her into his residence after leaving prison because he was staying with friends in a place he deemed unsuitable for her, but did not show that he had tried to find a more suitable residence or that he could not have found one. On the contrary, he was satisfied to leave the minor with her grandmother for the time being, and suggested in the alternative that she be placed with other friends of his. In short, he put on no evidence that he ever attempted or intended to find a home suitable for her and physically receive her into it.
J.R. asserts that after his release from incarceration he was prevented from taking the minor into his home by "his lack of suitable housing and his desire not to unnecessarily disrupt the child's life." But, as we have explained, he did not show that he sought to remedy his housing problem. (Compare In re Jerry P., supra, 95 Cal.App.4th at pp. 799-801, 812, fn. 63 [alleged father who resided at a mission where minor could not stay, but would have brought minor there for visits if the agency had allowed it, and would relocate to another residence which accepted children, had made sufficient efforts to receive child into his home].) Nor does he explain how it would "unnecessarily disrupt the child's life" to provide her a residence where he could receive her.
J.R. notes that even as it ruled against him, the juvenile court said he had done "everything that he possibly could do." However, immediately after saying this, the court added: "He does not have a home, did not make a home for the child." Because this finding was correct and dispositive, the court's prior remark is immaterial.
The order finding that J.R. is not a presumed father is affirmed.
We concur: HULL , J. HOCH , J.