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In re Brianna M.

California Court of Appeals, Second District, Fourth Division

October 24, 2013

In re BRIANNA M., a Person Coming Under the Juvenile Court Law.
v.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendant and Respondent RON H., Plaintiff and Respondent,
v.
FRANCISCO M., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County No. CK93880, Marilyn Kading Martinez, Commissioner. Affirmed and remanded.

Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.

Frank H. Free, under appointment by the Court of Appeal, for Plaintiff and Respondent.

No appearance for Defendant and Respondent.

Aida Aslanian, under appointment by the Court of Appeal, for Minor.

SUZUKAWA, J.

Francisco M. (Francisco) is the biological father of eight-year-old Brianna M.; Ron H. (Ron) is the father of Brianna’s half-brothers and has raised Brianna since she was an infant. When Brianna was adjudicated a dependent child, both men appeared and sought presumed father status. Although both men arguably met the statutory criteria for presumed father status, the juvenile court designated Ron as “the” presumed father because he had a well-established parental relationship with her, while Francisco—who had seen Brianna only a few times since she was an infant—did not.[1]

Francisco appeals, contending that as a matter of law, the juvenile court was required to grant him presumed father status because he executed a voluntary declaration of paternity when Brianna was born. That voluntary declaration, Francisco says, has the legal effect of a paternity judgment; thus, under Family Code section 7612, subdivision (c) (hereinafter, section 7612(c)), [2] it rebutted Ron’s “presumption” of paternity under section 7611, subdivision (d) (hereinafter, section 7611(d)).[3]

We affirm. As we discuss below, we conclude that section 7612(c)—which provides that “[t]he presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man”—has no application here. The “presumption” of paternity rebutted by section 7612(c) relates solely to biological paternity, and to the rights (custody and visitation) and responsibilities (child support) that spring from it. Biological paternity is irrelevant to “presumed father” status in a dependency action, however. In a dependency action, a “presumed father” is not a man who is “presumed to be the natural father of a child” (§ 7611), but rather is a man who has “‘demonstrate[d] a full commitment to his paternal responsibilities—emotional, financial, and otherwise’” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802), and thus is entitled to seek reunification services and custody. Therefore, for dependency purposes, a voluntary declaration of paternity executed by one man does not, as a matter of law, extinguish another man’s presumed father status. The juvenile court thus did not err in designating Ron as Brianna’s presumed father. However, because proper notice was not provided under the Indian Child Welfare Act (ICWA), we remand to the trial court with directions to ensure that ICWA notice is properly given.

FACTUAL AND PROCEDURAL BACKGROUND

I. Detention and Petition

Brianna (born Mar. 2005) is the biological daughter of Stephanie P. (mother) and Francisco. Brianna’s half-brothers, Ronnie H. (born Mar. 2007) and Anthony H. (born Apr. 2008), are the children of mother and Ron. Brianna’s half-sister, L.G. (born Dec. 2011), is the daughter of mother and Jonathan G. (Jonathan).

On June 6, 2012, the Los Angeles County Sheriff’s Department conducted a parole compliance check of Jonathan at the family home. Jonathan and mother took the children into one of the bedrooms and barricaded themselves in it. When deputies entered the room, they discovered a loaded gun accessible to the children and “deplorable” home conditions. The home “was extremely dirty and messy, [a] non-operational dishwasher was in the bedroom, the home had a foul odor, trash [was] strewn throughout, roaches [were] everywhere, dead flies were in the refrigerator and animal feces [were] scattered throughout. It was also reported that the child [L.G.] was dressed in a heavily urine soiled blouse and she too also had [a] strong foul odor to her.” The sheriffs arrested mother and Jonathan and detained the children.

The Department of Children and Family Services (DCFS) filed a juvenile dependency petition for Brianna and her siblings on June 11, 2012. It alleged: Jonathan hit and choked mother in the children’s presence, and such violent conduct in the children’s presence endangered their health and safety and placed them at risk of physical harm (a-1, b-2); mother and Jonathan allowed the children access to a loaded firearm and refused to comply with law enforcement requests to exit the home (b 1); the family home was in a filthy and unsanitary condition, endangering the children’s health and safety (b-3); and mother had a history of illegal drug use and was a current user of marijuana, which rendered her incapable of providing regular care for the children (b-4).

DCFS filed a detention report on June 11, 2012. It stated that during a June 6 interview, mother identified Francisco as Brianna’s biological father. Mother said Francisco was listed on Brianna’s birth certificate, but he had not had any contact with her. During an interview conducted the same day, Ron said he had raised Brianna since she was three months old and considered himself her father. He said Francisco had been in jail when Brianna was born. Ron’s relationship with mother had ended a few years earlier, and Ron and mother had difficulty getting along. Brianna, Anthony, and Ronnie usually stayed with Ron or his sisters, Laura T. or Vanessa H.; the children stayed with mother only when she picked them up because he was working. Ron said he was aware of domestic violence between mother and Jonathan and thought mother was unable to care for the children. Ron said he would like Brianna to be placed with him.

On June 11, 2012, mother filed a “Parentage Questionnaire, ” in which she stated that Francisco had been present at Brianna’s birth and had held himself out as Brianna’s parent, but had not received Brianna into his home. Mother said Francisco had signed “the birth certificate, or other paperwork naming him the father.”

On June 11, 2012, the juvenile court ordered the children detained. It found that Francisco was the presumed father of Brianna, Ron was the presumed father of Ronnie and Anthony, and Jonathan was the presumed father of L.G. The court ordered Ronnie and Anthony released to Ron, who was sharing a home with the paternal grandfather and paternal aunts. The court said it could not then order Brianna placed with Ron because he had been convicted in 2003 of resisting arrest, but it agreed to place Brianna with the paternal aunts in the family home on the condition that Ron move out temporarily until DCFS could obtain a waiver of his criminal conviction.

DCFS filed an amended petition on July 25, 2012. It alleged that mother and Jonathan created a dangerous and unsanitary home environment (b-1); the children were exposed to violence by Jonathan against mother, placing the children at risk of harm (b 2); mother had an unresolved history of substance abuse and abused marijuana, placing the children at risk of harm (b-4); and Jonathan had an unresolved history of substance abuse, which placed the children at risk of harm (b-5).

II. Interim Reports

Francisco filed a “JV-505 Statement Regarding Parentage” on July 25, 2012. It stated that he believed he was Brianna’s father and had established parentage of Brianna by signing a voluntary declaration, dated March 23, 2005. It further stated that Brianna had lived with Francisco from birth to 2006, and that he had told “everyone I know including my family” that Brianna was his daughter. It continued: “Prior to mother’s disappearance I saw my daughter up until my daughter was 1 yr old. In 2010 mother contacted my family [and] allowed me to see her twice that year. When mother disappear[ed] I did try to locate my daughter but I looked only in the State of AZ. I did not know mother had relocated to California until 2010. In 2010 I tried to have more visits w/ my daughter but was told by mother that [Ron] did not want my daughter to see me.” Francisco also filed a notification of Indian status, stating that he might be eligible for membership in the Gila River Community.

DCFS filed a jurisdiction/disposition report in July 2012. It stated that Ron had a criminal record, having been arrested in 1997 for receiving stolen property, and convicted in 2005 of obstructing a police officer. Brianna, Ronnie, and Anthony had been placed with Ron, and L.G. had been placed in foster care. Ron was sharing a home with his two sisters, father, and niece, and the children were reported to be thriving in the family home. Ron had a full-time job, where he had been employed since 1997. Ron’s sister, Laura T., was involved with the children’s day-to-day care. According to DCFS, Ron “is able to support himself and the children Ronnie and Anthony and in fact is willing and committed to also caring for the child Brianna on a permanent basis despite the fact that the child Brianna is also not the father Ron [H.]’s child. The father Ron [H.] stated that he considers the child Brianna his child because he has raised the child Brianna since the child Brianna was just a few months old.... The father Ron [H.] is committed to complying with the Court orders in order to retain custody of the children.”

The report also stated that during a July 23, 2012 interview, mother said she became pregnant with Brianna when she was 17 years old. Francisco hit her both before and after she was pregnant. When Brianna was about two months old, Francisco grabbed a kitchen knife and threatened to kill her. Mother called the police and pressed charges. A month later, she left Francisco and then met and became involved with Ron. Mother, Ron, and Brianna moved to Los Angeles, where Ronnie was born. Mother said Ron “always worked and took care of us.” Mother said she and Ron had a good relationship for about five years, until she began using methamphetamines.

Francisco told the social worker that he met mother in Arizona in about 2003, and that he, mother, and Brianna lived together until mother “disappeared” when Brianna was about nine months old. He did not know where mother and Brianna had gone. In 2010, mother contacted Francisco’s sister and allowed Francisco to visit Brianna, but then disappeared again. He admitted to a single episode of domestic violence with mother when Brianna was two months old. He was currently unemployed because he was caring for his father, who suffered from kidney failure. Francisco said he was in a position to care for Brianna and wanted custody of her.

The multidisciplinary assessment team report attached to the DCFS report said Brianna was very close to Ron and enjoyed spending time with him. She was not aware that he was not her biological father. She reported missing Ron when he was not allowed to spend the night in the family home, and said she was very happy once Ron was allowed to resume living in the home.

The court held a preresolution conference on July 25, 2012. The court stated that based on Francisco’s paternity questionnaire, Francisco appeared to be Brianna’s presumed father. The court said the Indian tribe to which Francisco reportedly belonged was not federally recognized, and it therefore did not order that ICWA notice be given. The court granted Francisco monitored visits with Brianna.

III. Ron’s Welfare and Institutions Code Section 388 Petition Seeking Presumed Father Status

Ron filed a Welfare and Institutions Code section 388 petition on September 13, 2012, asking the court to (1) vacate the finding that Francisco is Brianna’s presumed father, and (2) find that Ron is her presumed father. In support, Ron filed a declaration in which he stated as follows:

“1. I have lived with the child Brianna [M.] since she was nine months old.

“.

“4. I have always considered Brianna as my daughter and I have made representations that she was my daughter to all of my friends and family members and co workers. People do not know that she is not my biological daughter and would be surprised to find out such a fact.

“5. Brianna has spent time with my family, even without me being present. They all treat Brianna like she is my daughter and love her the same way that they love my two sons.

“6. I have taken trips with Brianna and her brothers and we have done family outings and activities together.

“7. I have provided all necessities for Brianna including food, clothing, and shelter since the time that she was an infant until now. I am prepared to continue providing for her in the future with whatever she needs.

“8. All of her medical needs have been met by me and I have been the person making medical decisions for her and taking her for regular medical appointments.

“9. The mother and I separated in October of 2010. Even after we separated, Brianna continued to reside with me and visited with her mother. She spent the majority of the time with me and her brothers at my residence.

“10. Brianna has her own room at my house.

“11. I have enrolled Brianna into school since she has been of school age and she currently attends the same school as her brother Ronnie.

“12. Brianna considers me as her father and calls me ‘dad.’

“13. [Francisco] has not seen Brianna and has not visited with her, not even after the last court date when the court allowed for him to have monitored visitation with her. He was supposed to call my sister to set up a visit but never called on the date scheduled....”[4]

Francisco filed opposition to the Welfare and Institutions Code section 388 petition on October 4, 2012. In a declaration in support of his opposition, Francisco stated as follows:

“1. I was present at Brianna’s birth and signed the voluntary declaration of paternity. As such, my name appears on Brianna’s birth certificate.

“2. I lived with Mother... in Arizona from on or about 2003 until I became incarcerated in February of 2006. The child, Brianna [M.], was 11 months old at that time.

“3. When Mother, Brianna and I lived together, we lived with my father, my sister..., and my sister’s children.

“4. After I was incarcerated, Mother continued to live at our shared residence with my family, until approximately August of 2006.

“5. While I was incarcerated, Mother and Brianna came to visit at least once per week, but frequently as often as three times per week.

“6. In early August of 2006, when Mother came to visit me in custody, she informed me that she had been speaking to another man on the phone and apologized to me.

“7. Later that day, Mother dropped Brianna at our family home with my family members.

“8. Mother returned to the home at 9:30 pm that night, demanding her daughter be returned to her care. My family complied.

“9. Since that night, no one in my family or I had any contact with Mother. Mother did not answer my family’s phone calls, and eventually ...


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