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

October 24, 2012


Trial Court: Santa Clara County Superior Court Superior Court No. JD21047 Trial Judge: Hon. Daniel T. Nishigaya

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


(Santa Clara County Super. Ct. No. JD21047)

D.M., the third child of V.S. (mother), was taken into protective custody directly from the hospital where he was born. The juvenile court sustained a petition filed by the Santa Clara County Department of Family and Children's Services (the Department) pursuant to Welfare and Institutions Code section 300, finding that D.M. came within the jurisdiction of the juvenile court. The juvenile court also found that mother's boyfriend, respondent J.J., who is not D.M.'s biological father, is not married to mother, and cannot satisfy the statutory presumptions of paternity set forth in Family Code section 7611,*fn1 is nevertheless the presumed father entitled to reunification services because he has done everything a biological father might have done under the circumstances "to develop a bond" with the child. The Department appeals, asking us to reverse the presumed father declaration and the order for services to J.J.

We conclude that, although J.J. may have done everything he could under the circumstances to be a father to D.M., he must also demonstrate that he has an existing familial bond with the child sufficient to warrant giving him rights equal to those afforded a biological mother. Because the record does not support this essential element, we shall reverse and remand the matter to allow the court to reconsider the issue if J.J. desires to reassert his claim.

I. Legal Framework

Dependency law recognizes four types of fathers: alleged, de facto, biological, and presumed. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, review granted May 1, 2002, S104863, opn. ordered published June 6, 2002 (Jerry P.).) Only a presumed father is entitled to appointed counsel, custody (if there is no finding of detriment) and reunification services. (In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) A biological father who is not a presumed father may be granted services but it is not mandatory. (Welf. & Inst. Code, § 361.5, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 451.)

To be a statutorily presumed father a man need not be the child's biological father but he must fit at least one of the categories of section 7611. Under section 7611 a man is presumed to be the father if he made a voluntary declaration of paternity (§ 7570 et seq.) or is a nonsterile husband who cohabited with the mother at the time of conception (§ 7540 et seq.). A man may also be the presumed father in four additional circumstances described by subdivisions (a) through (d) of section 7611: "(a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated . . . . [¶] (b) Before the child's birth, he and the child's natural mother have attempted to marry . . . . [¶] (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, . . . [¶] (d) He receives the child into his home and openly holds out the child as his natural child."*fn2

There are some circumstances where a man with no marital relationship to the mother, and who has not received the child into his home, may be declared a presumed father under principles of due process and equal protection if he has been prevented by the mother or by third parties from physically receiving the child into his home. (In re Julia U. (1998) 64 Cal.App.4th 532 (Julia U.); Jerry P., supra,95 Cal.App.4th 793.) We shall consider the circumstances under which this exception applies in our discussion below.

II. Background

J.J. and mother have never been married or attempted to marry. J.J. met mother shortly after she became pregnant with D.M. He moved in with her about three months before D.M. was born. Mother told the Department that D.M.'s biological father was "Earl." She did not know his last name and could not find out because he had moved away. Mother had only a brief relationship with Earl; it ended shortly before she got together with J.J.

D.M. was born in February 2012 when mother was 19 years old. Hospital social workers contacted the Department, describing concerns about mother's "not showing proper bonding." She had not sought prenatal care until late in her pregnancy and was alleged to have hidden the pregnancy from her social worker. Mother's parental rights to her first child had been terminated in 2009. At the time of D.M.'s birth, mother had an open dependency case involving a second child and the Department was recommending terminating reunification services in that case as well.

D.M. was taken into protective custody directly from the hospital. The Department's petition (Welf. & Inst. Code, § 300, subds. (b) & (j)), filed when D.M. was just two days old, cited as bases for jurisdiction mother's behavior in the hospital, her history of abuse and neglect of her two older children, concerns about her mental health, and the fact that the trailer in which she lived was previously found to be unsanitary and unsafe.

Mother and J.J. were present at the initial hearing. The juvenile court ordered D.M. detained and directed the Department to provide mother with a minimum of two two-hour supervised visits every week. The court gave the social worker discretion to allow visits with J.J. The court set a hearing for March 12, 2012, for determination of jurisdiction and appointment of counsel for J.J. who claimed paternity rights.

At the March 12 hearing, mother and J.J. were again present. The court appointed counsel for J.J. and continued the jurisdictional hearing. Reunification services had recently been terminated in the case of mother's second child and the Department wanted the opportunity to consider asking the court to bypass services in this case.

Prior to the jurisdictional hearing, J.J. filed a statement regarding parentage in which he stated that he believed he was D.M.'s parent and asked the court to enter a judgment to that effect. J.J. claimed that he had been with mother "since one week of pregnancy" and that he had remodeled her house to get it ready for the baby, attended all of mother's prenatal appointments, and had been visiting the baby regularly. Mother and D.M.'s counsel supported J.J.'s request. The Department opposed it, pointing out that J.J. had not signed a voluntary declaration of paternity when the baby was born, was not named on the birth certificate, and could not meet any of the statutory requirements for presumed father status.

Although concerned about mother's ability to internalize the services she had received in conjunction with the previous two dependency cases, the Department decided not to recommend bypassing services in this case. Inspection of mother's home on February 28, 2012, revealed that the Department's cleanliness and safety concerns had been addressed. The home was "neat and tidy" with no evidence of dog feces that had been present in the past. There was a security gate separating the kitchen from the living room area, a bed in a separate room for mother's second child when he visited, and a crib in mother's room for D.M. Visitation with D.M. had been going well. Mother and J.J. had been consistently visiting and visits had been uneventful. Mother and J.J. took turns holding the baby and were able to provide basic care such as feeding, burping, and ...

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