D.M., thе third child of V.S. (mother), was taken into protective custody directly from the hospital where he was bom. 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,
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 сourt 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)
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 tо 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
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)
II. Background
JJ. and mother have never been married or attempted to marry. JJ. met mother shortly after she becаme pregnant with D.M. He moved in with her about three months before D.M. was bom. 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 JJ.
D.M. was bom 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
Mother and JJ. were present at thе 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 JJ. 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 JJ. 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 bom, 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 thе 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 diapering. D.M. was healthy. He had no apparent developmental delays. He had a calm, even temperament and was thriving in his foster home. His foster parents were willing to adopt him should reunification efforts fail.
The Department’s report for the jurisdictional hearing noted that J.J. had expressed his intent to support mother in this case. He was looking for work
The Department’s recommendation was that mother receive reunification services, including a psychological evaluation, and that no services be provided to JJ. In an addendum report submitted just prior to the jurisdiction/disposition hearing, the Department revealed that A.S., a nonrelated extended family member, was willing to have D.M. placed with her and was also willing to adopt him should reunification efforts fail. Her home had been identified as appropriate for placement and would be the least restrictive еnvironment for the child, allowing mother and JJ. to comfortably interact with D.M. during visits. The Department continued to oppose offering reunification services to JJ.
JJ.’s parentage petition was heard in conjunction with the jurisdiction and disposition hearing on April 11, 2012. JJ. testified that he had met mother a few days after she found out she was pregnant. They began dating and he moved in with her in November 2011. JJ. went to mother’s prenatal doctor’s appointments with her, talked to the doctors, and voiced his opinions and concerns. It did not matter to him that he was not D.M.’s biological father. He has a “very, very close” relationship with mother and through her рregnancy he began an attachment to D.M. “even through her stomach.” JJ. lives with mother in her trailer. He and she have prepared the home, cleaned it, redecorated it, and made it child safe. JJ. bought a lot of diapers, wipes, clothes, formula, bottles, and bedding for the baby.
J.J. took mother to the hospital to deliver the baby; hospital staff told him that she would have the baby by caesarean section, which was scheduled for a certain time. J.J. had somewhere “very important” he needed to be, so he left, intending to return in time for the birth, but “they moved her C-section like hours earlier” so that he was not there when the baby was bom, although
In the two months since D.M. was bom, J.J. visited him twice a week for two hours each time. He believes that the baby already recognizes him, smiles at him, laughs, giggles, and loves for J.J. to hold him. J.J. has told most of his family that D.M. is his son. They understand that D.M. is not J.J.’s biological child but that J.J. intends to adopt him as his own. He has asked that D.M. come to live with him but he understands that the child has been removed from mother’s custody because of her inability to reunify with her older children.
Taking into account all of the Department’s reports and J.J.’s testimony, the juvenile court concluded that J.J. had standing to seek presumed father status even though he was not the biological father and D.M. had never lived in his home. The court believed the question was “one of degree.” Had J.J. done enough and presented enough evidence to establish the foundational requirements of a section 7611, subdivision (d) presumption of fatherhood? Relying upon Jerry P, supra,
The juvenile court cited the evidence upon which it relied for the finding, which was that J.J. had begun preparing and helping to provide for the child before birth. He had supported mother throughout her pregnancy and continued to do so. He arrived at the hospital as quickly as he could after the child was bom and took him into his arms. He did not take him home because “circumstances prevented that from occurring.” J.J. appeared at the initial hearing аnd as best he could “sought to inform the Court of his desire to be deemed the presumed father.” He sought the right to visit the baby and has been visiting consistently. “In the Court’s view he has done all of the things that a biological father under the circumstances might do to develop a bond in a relationship with this child.”
The juvenile court recognized that a lingering question was J.J.’s motivation. Was it solely due to his love of D.M. or was it to some extent connected to his relationship with mother? The court did not believe the question could be fully answered at that point and found J.J. was believable when he stated his desire to be there for D.M. regardless of the circumstancеs and for all
The court sustained the petition, ordered D.M. placed with A.S., and directed the Department to provide reunification services to mother and J.J. and to arrange for visitation for a minimum of two hours twice a week for both of them. The Department has filed this timely appeal.
III. Discussion
A. Issues and Standards of Review
The Department argues that J.J. cannot qualify as a presumed father under section 7611 and thаt the juvenile court applied an inappropriate analysis for determining nonstatutory presumed father status. We review the first contention for substantial evidence. (In re Cheyenne B. (2012)
B. J.J. Is Not a Statutorily Presumed Father
We agree with the Department that J.J. cannot qualify as a presumed father under section 7611. J.J. did not sign a voluntary declaration of paternity, he never married or attempted to marry mother, and he never received D.M. into his home.
J.J. argues that he may be deemed a statutorily presumed father under section 7611, subdivision (d) because some сourts have allowed father-child visits to qualify as receiving the child into the home. The cases he cites do not support his argument. In In re A.A. (2003)
C. The Jerry P. “Equitable Father” Analysis
If J.J. has any claim to presumed father status it rests exclusively upon Jerry P, supra,
In Kelsey S., the biological father, who was not married to the mother, could not be a statutorily presumed father because he could not prove that he had taken the child into his home; the mother had prevented him from doing so. Since only statutorily presumed fathers had authority under the adoption statutes to consent (or withhold consent) to the adoption of their children, the biological fathеr had no say in the mother’s decision to release their child for adoption. The Supreme Court concluded that the adoption statutes violate the biological fathers’ right to due process and equal protection of the law to the extent that they permit the mother to unilaterally preclude her child’s biological father from being a presumed father. (Kelsey S., supra,
Kelsey S. explained that the disparate treatment was not substantially related to the identified governmental interest of protecting the child’s best interests. “The child has a genetic bond with its natural parents that is unique among all relationships the child will have throughout its life. ‘The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility.’ [Citation.] It therefore would be curious to conclude that the
Kelsey S. concluded, “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his рarental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child’s well-being is presumptively best served by continuation of the father’s parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.” (Kelsey S., supra,
Kelsey S. was extended to dependency proceedings in Julia U., supra,
Kelsey S. and Julia U. set the stage for Jerry P. In Jerry P., J.R. had had a one-year unmarried relationship with the child’s mother during which the child was conceived. J.R. assumed the baby was his. J.R.’s relationship with the mother ended before the child’s birth but he continued to support her during the pregnancy. {Jerry P, supra,
Jerry P. held that the Kelsey S. reasoning was applicable in dependency cases since the dependency statutes set up the same kind of disparate treatment the adoption statutes created. (Jerry P, supra,
D. An “Equitable Father” Must Demonstrate an Existing Familial Bond
The Department argues that the Jerry P. analysis is flawed in that it overlooked the fundamental difference between its case and the facts of Kelsey S., namely, the absence of a biological tie between the alleged father and the child. The Department maintains that under Jerry P., “an unrelated person of any gender, sharing no biological tie with the child, can claim a constitutional right to parenthood if prevented by the biological mother from developing a familial relationship with that child.” We do not read the case so broadly.
We do not read Jerry P. as holding that the constitutional right to assert paternity extends to any man who comes forward promptly. Jerry P. began its analysis of the constitutionality of section 7611 in the dependency context by noting, “The evidence in this case leaves no doubt J.R. established a father-son relationship with Jerry before his birth and that this relationship continued through the hearing on J.R.’s presumed father status.” (Jerry P., supra,
Section 7611, subdivision (d), from which both Jerry P. and Kelsey S. were derived, requires something more than a man’s being the mother’s casual friend or long-term boyfriend; he must be “someone who has entered into a familial relationship with the child: someone who has demonstrated an abiding commitment to the child and the child’s well-being” regardless of his relationship with the mothеr. (E.C. v. J.V. (2012)
The presence of a parental relationship will often be easy to prove. As one court explained, the reason it is not necessary that a presumed father be the biological father “is because a presumed father, who has lived with a child and treats the child as a son or daughter, has developed a parent-child relationship that should not be lightly dissolved. This type of familial relationship is much more important, at least to the child, than a biological relationship of actual paternity.” (In re PA. (2011)
E. The Interest in Providing a Child with Two Parents Is Not a Factor Unless the Evidence Supports the Presumption of Parenthood
We recognize that one important policy concern is ensuring that children have two parents. Here, D.M.’s counsel supported J.J.’s request for presumed father status for that reason. But reliance upon the policy favoring two parents is misplaced if it comes before an accurate finding of parenthood.
Section 7612, subdivision (a) provides that the presumptions arising under section 7611 “may be rebutted in an appropriate action.” In Nicholas H.,
In both Nicholas H. and Elisa B., the presumed parents had undisputed, statutorily presumed parent status. One need not decide whether an action is appropriate to rebut the presumption of parenthood unless the evidence supports the presumption in the first place. As one commentator has written: “If parentage findings in dependency cases are to be meaningful and not subject to later dispute when another possible parent emerges, all parties must ensure that the process used by the court to determine parentage in each case is as thorough as the circumstances of the case dictate, and as accurate as reasonably possible.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Proc. (2012) § 2.60[6], p. 2-123.) The well-intentioned desire to provide a child with two parents does not trump the need to make sure that the persons we designate aсtually are the parents. Where, as here, there is an unknown biological father who may have an interest in parenting his biological child if he knew he had one, a precipitous finding that an unrelated man is the presumed father has a potential for mischief that could well be contrary to the best interests of the child.
F. The Juvenile Court Did Not Focus upon Familial Bonds
In applying the Jerry P. analysis in this case, the juvenile court focused upon the fact that JJ. came forward promptly and has done everything he could do in the first two months of the baby’s life to “develop a bond” with D.M. There is substantial evidence to support that finding and we need not recite it here. But the court did not find that there was аn existing father-son relationship between JJ. and D.M., without which JJ. cannot be a presumed father. Indeed, the juvenile court’s observation that JJ. had done what he could to “develop” a bond with the baby, and its recognition that the presumed-father finding could be different in the future, suggest that the court considered only the possibility that JJ. would develop a parental relationship with the child, not that the relationship already existed.
Accordingly, we shall reverse the juvenile court’s order declaring JJ. to be the presumed father of D.M. Reversal of that order necessarily requires
IV. Disposition
The order of the juvenile court declaring respondent JJ. to be the presumed father of the minor D.M. and ordering appellant Department of Family and Children’s Services to provide reunification services to him is reversed. This disposition is without prejudice to J.J.’s making another request for presumed father status.
Rushing, R J., and Elia, J., concurred.
Respondent’s рetition for review by the Supreme Court was denied January 3, 2013, S207019.
Notes
Hereafter all unspecified statutory references are to the Family Code.
The code sections applicable to determining father-child relationships are used to determine mother-child relationships as well, “[i]nsofar as practicable.” (§ 7650, subd. (a); see Elisa B. v. Superior Court (2005)
JJ. has two felony convictions: carjacking (Pen. Code, § 215) in 2003 and taking a vehicle without consent (Veh. Code, § 10851, subd. (a)) in 2007. He also has several misdemeanor convictions, the most recent of which were December 2011 convictions for driving without a license and hit and run with property damage (id., §§ 12500, subd. (a), 20002, subd. (a)).