Opinion
R.P, the alleged father of B.C., appeals an order granting his request for paternity testing but requiring him to pay for the testing. We conclude that, because R.P. appeared in the dependency proceedings and filed a Statement Regarding Parentage Judicial Council form (JV-505) in which he requested a determination of biological paternity, the juvenile court was obliged to make that determination, whether by genetic testing or otherwise. (Welf. & Inst. Code, § 316.2; Cal. Rules of Court, rule 5.635.)
FACTS AND PROCEDURAL BACKGROUND
1. Detention of B.C.
In July of 2009, the Los Angeles County Department of Children and Family Services (the Department) took eight-year-old B.C. into protective custody after his mother (mother) left him with a friend without making arrangements for the child’s care. Mother identified R.P. as B.C.’s father but
At the detention hearing, the juvenile court ordered B.C. detained in foster care and declared R.P. his alleged father. Mother submitted a paternity questionnaire in which she stated she lived with R.P. at the time of B.C.’s conception but she did not know how to contact him.
A declaration of due diligence filed August 25, 2009, indicated the Department had been unable to locate R.P.
In the jurisdiction report filed August 25, 2009, mother’s friend stated mother has indicated that B.C. was conceived as a result of a one-night stand.
On September 30, 2009, the juvenile court sustained the allegations of a dependency petition, declared B.C. a dependent child and ordered him placed in foster care.
2. Mother fails to reunify; family reunification services are terminated.
On April 1, 2010, the social worker reported mother was not complying with the case plan and she had been difficult to contact. The Department filed a declaration of due diligence dated March 30, 2010, detailing another unsuccessful search for R.P.
The Department reported that, on November 20, 2009, B.C. was placed with Mr. E, a middle school teacher who had an approved home study. Mr. E was providing B.C. a stable home, was meeting his emotional, medical and physical needs on a consistent basis, and was interested in adopting B.C. if mother failed to reunify.
The Department later reported B.C. had been diagnosed with attention deficit hyperactivity disorder and Mr. E was working with B.C.’s school to ensure he received appropriate services. Mr. E has been courteous with mother, allows B.C. to receive daily telephone calls from mother and monitors her weekend visits. Mr. E was interested in adopting B.C. but has indicated he is not sure he can continue to care for the child if mother’s reunification services are extended. The Department asserted this would be detrimental to B.C. and recommended termination of reunification services.
3. Permanency planning.
A social report filed for the permanency planning hearing indicated B.C. was participating in individual counseling and he enjoyed living with Mr. F. The report stated Mr. F. has a master’s degree in education, he is motivated to give B.C. a permanent home and B.C. had shown significant progress in the care of Mr. F. The report recommended termination of parental rights and preadoptive placement with Mr. F.
4. R.P. is located, appears and requests paternity testing.
On January 11, 2011, the Department personally served R.P. with notice of the permanency planning hearing. R.P. appeared at the hearing on January 24, 2011. The juvenile court appointed counsel to represent him and continued the hearing to March 28, 2011.
On March 1, 2011, R.P. filed a written request for genetic testing to determine paternity of B.C. On March 8, 2011, the juvenile court concluded B.C. had a “right to know under these circumstances” and authorized testing but directed that R.P. would have to pay for it.
A social report filed for the continued permanency planning hearing indicated that on March 14, 2011, Mr. F. informed the social worker that B.C. wanted to keep open the possibility of being returned to mother and Mr. F. did not wish to interfere with that possibility. Although Mr. F. and B.C. no longer were interested in adoption, Mr. F. was willing to provide legal guardianship.
On March 24, 2011, R.P. filed a section 388 petition requesting, inter alia, a 60-day continuance of the permanency planning hearing for genetic testing. The juvenile court granted a hearing on the petition and continued the matter.
On May 12, 2011, R.P. filed a Statement Regarding Parentage (JV-505) in which he requested genetic testing to determine whether he is B.C.’s biological father. R.P. also submitted a declaration in which he stated he did not recall ever knowing mother but acknowledged the possibility he might be B.C.’s father. When R.P. learned of the dependency proceedings, he immediately came forward. R.P. asserted he desired to “meet his obligations to be a father to [B.C.] if I am indeed the boy’s father.”
R.P. filed a timely notice of appeal from the order of May 12, 2011.
5. Subsequent developments.
At the request of the Department we have taken judicial notice of a postpermanent plan review report filed September 26, 2011. This report indicates that, in June of 2011, Mr. F. asked the social worker to reinitiate the adoption process as Mr. F. and B.C. had discussed the matter further and now agreed adoption was the most appropriate plan for B.C. The report indicated B.C. no longer requires individual counseling, B.C. wants to be adopted by Mr. F., he is happy in the home and he calls Mr. F. “Dad.”
DISCUSSION
R.P. contends the juvenile court erred in failing to determine whether he is B.C.’s biological father. It appears this claim has merit.
Under section 316.2, at the detention hearing or as soon thereafter as is practicable, the juvenile court must inquire as to the identity of all presumed or alleged fathers.
Rule 5.635(h) states: “If a person appears at a hearing in a dependency matter . . . and requests a judgment of parentage on form JV-505, the court must determine: [j[] (1) Whether that person is the biological parent of the child; and [][] (2) Whether that person is the presumed parent of the child, if that finding is requested.” (Rule 5.635(h), italics added.)
In re Baby Boy V. (2006)
In re Baby Boy V., supra,
Similarly, In re J.H. (2011)
Here, R.R filed a JV-505 statement, requested genetic testing to determine whether he is B.C.’s biological father and filed a declaration stating that, if he were found to be B.C.’s biological father, he wished to meet
The Department seeks to avoid this conclusion on various grounds. Primary among these is the Department’s assertion a determination of biological paternity is irrelevant in this case because B.C., now 11 ¥i years old, has had no relationship with R.P. and will soon be adopted by Mr. R, the only father he has ever known. Although Mr. F.’s resolve to adopt waivered in March of 2011, Mr. F. and B.C. have reconsidered and now wish to have the adoption procedure reinstated. Also, providing family reunification services to R.P. would jeopardize B.C.’s placement with Mr. R, who has been frustrated by the duration of mother’s services. The Department concludes the juvenile court properly could conclude paternity testing was not in B.C.’s best interests, citing In re Joshua R. (2002)
In Joshua R., the juvenile court denied an alleged father’s request for paternity testing because it found he would not qualify as a presumed father even if he established biological paternity. (In re Joshua R., supra,
Initially, it appears Joshua R. assumed the only purpose served by a determination of biological paternity is the possibility the alleged biological father might thereafter advance to presumed father status. However, nothing in rule 5.635 limits the juvenile court’s obligation to determine biological paternity to situations in which the alleged biological father might thereafter qualify as a presumed father.
Indeed, In re Baby Boy V. impliedly rejected such a limitation. The child in that case had been placed with his half sibling’s caretakers and the caretakers wished to adopt both children. Although it appeared adoption would have been in the child’s best interests had the alleged biological father not come
Additionally, other reasons warrant the rule requiring the juvenile court to determine biological paternity, including providing the dependent child access to the medical history of his or her family. Consequently, we disagree with Joshua R.’s conclusion the juvenile court’s obligation to determine biological paternity turns on whether the man claiming paternity can demonstrate such a determination would benefit the child.
In any event, even applying Joshua R. to the facts of this case, biological paternity was not irrelevant. Two months before the permanency planning hearing, Mr. F. stated he and B.C. had decided not to seek adoption but legal guardianship. Thereafter, as indicated in the subsequent developments, they again decided to seek adoption.
The Department also argues the juvenile court substantially complied with rule 5.635 by granting RJP.’s request for paternity testing. Thus, R.P.’s only argument is whether he should have been required to pay for the test. However, granting R.P. access to B.C. for the purpose of genetic testing did not fulfill the juvenile court’s obligation to determine biological paternity and thus constituted a violation of rule 5.635(h)(1).
The Department also contends a section 388 abuse of discretion analysis should be applied to R.P.’s requests for paternity testing. (See In re D.R. (2011)
DISPOSITION
The order of the juvenile court is reversed and the matter is remanded with directions to determine whether R.P. is B.C.’s biological father pursuant to rule 5.635.
Croskey, J., and Aldrich, J., concurred.
Notes
Subsequent unspecified statutory references are to the Welfare and Institutions Code; unspecified rule references are to the California Rules of Court.
As sustained, the petition alleged mother left B.C. with an unrelated adult without making an appropriate plan for his care; mother and R.P. had failed to provide B.C. the necessities of life; and, R.P.’s whereabouts were unknown.
“In dependency proceedings, ‘fathers’ are divided into four categories—natural [or biological], presumed, alleged, and de facto. [Citation.]” (In re A.A. (2003)
“Presumed father status ranks highest.” (In re Jerry P. (2002)
We acknowledge that postjudgment evidence of changed circumstances may not, except in extraordinary circumstances, be used as a basis to reverse on appeal the termination of parental rights. (In re Zeth S. (2003)