In re J.L.
- Reporters:
- ,
- Before:
- Margulies, Marchiano, Swager
MARGULIES, J.
Appellant Adrian L. executed a voluntary declaration of paternity upon the birth of J.L. and lived with J.L. and his mother, Kristi G. (Mother), for the first year of J.L.‘s life. When J.L. was 13 months old, Adrian and Mother left without warning on a trip to Mexico, abandoning J.L. with friends. As a result, the Solano County Health and Social Services Department (Agency) detained J.L. and filed a petition under section 300 of the Welfare and Institutions Code.
Within two weeks after J.L. was abandoned, before Adrian and Mother had returned from Mexico, Christopher W. appeared at a hearing and told the juvenile court that he suspected he was J.L.‘s biological father. After the results of a paternity test confirmed these suspicions, the court’ adjudged Christopher to be J.L.‘s legal father.
Because Adrian had been jailed immediately upon his return from Mexico on the basis of Mother‘s allegations of kidnapping, Adrian‘s claim to presumed paternity arising from the voluntary declaration was not brought to the court‘s attention until substantially later in the proceedings. After being informed of Adrian‘s claim, the juvenile court set aside his voluntary declaration of paternity, reaffirmed Christopher‘s status as J.L.‘s presumed and legal father, and granted custody of J.L. to Christopher. We affirm.
I. BACKGROUND
In June 2006, when J.L. was just over a year old, the Agency filed a petition under
At the time of J.L.‘s birth in May 2005, Mother was unwed but involved with Adrian. Mother and Adrian executed a voluntary declaration of paternity, and Adrian was identified as J.L.‘s father on the birth certificate. For the next year, Adrian acted as J.L.‘s father, living with and financially supporting Mother and J.L.
Prior to J.L.‘s birth, Christopher suspected he might be the baby‘s father, but Mother repeatedly told him he was not.1 When Christopher “tried to do something
Adrian had a history of violent and obsessive behavior. He was the subject of a domestic violence restraining order and criminal charges associated with stalking an ex-girlfriend in 2003. In December 2005, when J.L. was seven months old, Adrian disappeared with Mother and J.L. after an argument, causing Mother‘s family to file a missing person report. The three were found a week later living at a hotel. On June 12, 2006, after J.L.‘s first birthday, Mother filed a police report claiming that Adrian had hit her and attempted to take J.L. After Mother escaped to her father‘s home later that day, Adrian went to the home and, while confronting Mother‘s father at knifepoint, ran off with J.L. The next day, Mother sought an emergency restraining order against Adrian. The same day, the police located Adrian and returned J.L. to Mother.
Four days later, on June 17, while two friends were visiting Mother at her home, Adrian arrived and persuaded Mother to leave with him. J.L. was left with Mother‘s friends. After Mother stopped answering her cell phone under ominous circumstances, the police were called. It was not until six days later, June 23, that Mother was located in Mexico. In the meantime, Mother‘s friends had taken J.L. to Mother‘s father‘s home, and the Agency was notified of the situation. When Mother returned home, many days later, she claimed that Adrian had forced her to go to Mexico, and he was taken into custody in Southern California.
The juvenile court held a detention hearing on June 27, 2006, in the absence of Mother and Adrian, who presumably were still in Mexico. The court appointed counsel for each of them, ordered that Adrian be denied contact with J.L. and that Mother have only supervised visits, and scheduled a further hearing for July 5. The court expressly reserved the issue of paternity, and no mention was made of Adrian‘s execution of a voluntary declaration of paternity.2
Christopher attended the July 5 hearing, but Mother and Adrian did not. Their appointed counsel had been unable to get in touch with them and speculated that they were still in Mexico. Christopher informed the court that Mother had called him in Texas a few weeks prior, apparently when she was being threatened by Adrian in June, and acknowledged for the first time that he was J.L.‘s biological father. Christopher had returned to California in response to this call. Since arriving, Christopher had contacted Mother‘s father and begun visiting J.L. Christopher asked the court to order a paternity test. The court granted the request and appointed counsel for Christopher.
Mother and Christopher attended the next hearing, held five weeks later. Adrian‘s attorney, only recently having learned that Adrian might be in custody, asked to be relieved of his representation until and unless Adrian expressed an interest in the proceedings. Neither Mother nor any of the attorneys involved brought Adrian‘s
At the next hearing, held on August 29, 2006, in the absence of Adrian and his relieved counsel, the court learned that the genetic test had confirmed Christopher‘s paternity. The court, without objection, declared Christopher a presumed father, and a judgment declaring Christopher to be J.L.‘s legal father was entered soon after. A contested jurisdictional hearing was held on September 26. At the hearing, counsel revealed that Adrian was in custody on the charge of kidnapping Mother. In Adrian‘s absence, the juvenile court sustained the allegations of the petition and found J.L. to be a child described by
The dispositional hearing, postponed several times, was commenced on November 13. The dispositional report prepared by the Agency disclosed that Adrian was listed as J.L.‘s father on his birth certificate. At the hearing, the juvenile court recognized that Adrian‘s designation on the birth certificate could only have occurred if he had executed a voluntary declaration of paternity. The court informed counsel that Adrian‘s execution of the declaration made him a presumed father, thereby leaving J.L. with two presumed fathers, and the hearing was continued until proper notice had been given to Adrian. It was eventually learned that Adrian was incarcerated in federal custody in Sacramento. Two orders were issued to secure his attendance at the proceedings, but efforts to secure his presence ceased when the federal authorities holding Adrian refused to comply with the orders.
In late January 2007, Christopher‘s counsel filed a request to set aside Adrian‘s voluntary declaration of paternity in favor of Christopher‘s claim. Adrian‘s counsel, who had been re-appointed, filed a declaration opposing the set aside, arguing that Adrian had acted as J.L.‘s father from the time of his birth and had bonded with J.L. At a hearing on February 5, the juvenile court granted Christopher‘s request and designated Christopher J.L.‘s presumed father. As explanation, the court‘s written order stated only that Christopher “made greater efforts.”
At the next hearing, the juvenile court awarded custody to Christopher pursuant to
II. DISCUSSION
Adrian argues, for a variety of reasons, that the juvenile court erred in its conduct of the proceedings, in setting aside his declaration of paternity, and in awarding custody to Christopher. Adrian also argues that he was denied effective assistance of counsel.
The Uniform Parentage Act (
“Presumed” fathers are accorded far greater parental rights than alleged or biological fathers. (In re Zacharia D., supra, 6 Cal.4th at pp. 448-49, 24 Cal. Rptr.2d 751, 862 P.2d 751.) Presumed father status is governed by
Occasionally the complicated pattern of human relations gives rise to more than one legitimate claimant to presumed father status, and the juvenile court must resolve the competing claims. As the Supreme Court explained in In re Jesusa V. (2004) 32 Cal.4th 588, 603, 10 Cal.Rptr.3d 205, 85 P.3d 2 (Jesusa V.), “[a]lthough more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, `there can be only one presumed father.’ [Citations.]” The procedure for reconciling competing presumptions is stated in
A. Jurisdiction to Set Aside the Voluntary Declaration of Paternity
Adrian first contends that the juvenile court was without jurisdiction to set aside his voluntary declaration of paternity because Christopher lacked standing to challenge it.
The purpose of a voluntary declaration of paternity is to’ permit unwed parents to acknowledge the man‘s biological paternity of their child. After a birth by an unmarried mother,
Recognizing the possibility of second thoughts and error, the Act permits a voluntary declaration of paternity to be rescinded by either parent within the first two months. It also requires the court to set aside a voluntary declaration upon conclusive proof that the man signing the declaration was not, in fact, the biological father of the child, unless the court finds that setting aside the declaration would not be in the child‘s best interests. (
Adrian contends that the juvenile court erred in permitting Christopher to move to set aside his voluntary declaration of paternity because subdivision (b)(3)(A) of
To the extent it implies that Christopher would lack standing to challenge Adrian‘s voluntary declaration in this proceeding, we respectfully disagree with Christopher M.‘s interpretation of
We find support for this reading in the structure of
Similarly, the second “or” in
While our conclusion that Christopher‘s challenge was authorized by
The court emphasized that its decision applied only in narrow circumstances, when “an unwed father ... has sufficiently and timely demonstrated a full commitment to his parental responsibilities.” (Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) In deciding whether a particular biological father qualifies, the court instructed juvenile courts to consider “all factors relevant to that determination. The father‘s conduct both before and after the child‘s birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate `a willingness himself to assume full custody of the child—not merely to block adoption by others.’ [Citation.] A court should also consider the father‘s public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.” (Ibid., fn. omitted.)
Although
While it is true, as Adrian argues, that Christopher did not pay for the birth or bring an action to establish paternity, Christopher refrained from asserting his rights because Adrian actively and violently coerced him into abandoning them. As Christopher told the court in July, “I had actually heard I was [the] father before. I tried to do something about it and—Adrian had come to my work and threatened me. Actually, I filed a police report on it. At that point, I just kind of backed away because I didn‘t really know what to do, and I kind of moved away.” Later, in a declaration, Christopher‘s attorney elaborated: “While [Mother] was pregnant and after the baby was born, both [Mother] and [Adrian] repeatedly told [Christopher] that [he] was not the father. [Adrian] came to Christopher‘s place of employment and warned Christopher to stay away from [Mother] and the baby when it was born. Adrian disrupted the business and the police were called. After the baby was born, Adrian continued to harass Christopher, threatening to `beat his ass‘, driving by and throwing things out the car window, and on one occasion hitting the window where Christopher was living with a baseball bat. Adrian‘s actions were a primary reason that Christopher decided to move out of state.”
On these facts, Adrian is estopped from arguing that Christopher should be barred from asserting Kelsey S. rights because Christopher did not immediately attempt to assert his status as father. It was Adrian‘s own threats and violence that discouraged Christopher from asserting his rights. As Justice Mosk noted in a concurring and dissenting opinion in Kelsey S., conduct that frustrates a biological father from acting as a father presents “paradigm circumstances for the imposition of an estoppel. As Witkin observes, an estoppel deprives a defendant of her defense because of her own objectionable conduct. (3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 523, p. 550.)
From the evidence provided, the juvenile court could have concluded that Adrian‘s wrongful conduct was the primary reason that Christopher did not immediately assert his parental rights with respect to J.L. But for Adrian‘s threats, it appears that Christopher would have acknowledged paternity and acted fully as a father from the time of J.L.‘s birth, as required by Kelsey S. Yet even without the application of estoppel, the court could have concluded that Christopher was discouraged from earlier assertion of his rights by Mother‘s consistent denials and that he asserted his rights and sought full custody of J.L. as soon as Mother acknowledged he was J.L.‘s true father. (See Adoption of Michael H. (1995) 10 Cal.4th 1043, 1060, 43 Cal.Rptr.2d 445, 898 P.2d 891 [man cannot assert Kelsey S. rights unless he has come forward shortly after learning that the mother was pregnant with “his” child].)
A comparable case is Gabriel P. v. Suedi D., supra, 141 Cal.App.4th 850, 46 Cal. Rptr.3d 437, which featured two potential biological fathers, Gabriel and Anthony, both of whom had been told by the child‘s mother that they were the father. (Id. at pp. 854-855, 46 Cal.Rptr.3d 437.) Around the time of the child‘s birth, Anthony began living with the mother and executed a voluntary declaration of paternity. When Gabriel appeared at the hospital after the birth, the mother refused to see him or allow him to see the child, and she persisted in this refusal during the child‘s first few months. When the child was three months old, the mother falsely told Gabriel biological tests had shown he was not the father. (Id. at p. 855, 46 Cal.Rptr.3d 437.) Eventually, however, Gabriel became suspicious and filed a paternity action. After genetic testing confirmed that he was the child‘s father, the trial court concluded that Gabriel was a Kelsey S. father, although he did not meet the criteria for a presumed father, and set aside Anthony‘s declaration of paternity. (Gabriel P. v. Suedi D., at p. 856, 46 Cal.Rptr.3d 437.)
The court of appeal agreed that Gabriel should be afforded presumed father status. (Gabriel P. v. Suedi D., supra, 141 Cal. App.4th at p. 856, 46 Cal.Rptr.3d 437.) The court accepted the trial court‘s conclusion that Gabriel met the requirements of Kelsey S. because he “had acted as promptly as was reasonably possible to establish that he is [the child‘s] father, and that [the mother‘s] conduct had unilaterally precluded Gabriel from meeting the statutory requirements for the status of presumed father.” (Id. at p. 860, 46 Cal. Rptr.3d 437.) Based on Gabriel‘s status as a Kelsey S. father, the court rejected the claim that Gabriel lacked standing to file a paternity action because the governing statute restricts standing to the child, its mother, and a presumed father, concluding that Gabriel‘s constitutional right to assert his Kelsey S. paternity overcame any statutory restriction. (Gabriel P. v. Suedi D., at p. 860, 46 Cal.Rptr.3d 437.) In the same way, any claim that
III. DISPOSITION
The judgment of the juvenile court is affirmed.
We concur: MARCHIANO, P.J., and SWAGER, J.