L. A. Cnty. Dep't of Children & Family Servs. v. Joseph C. (In re B.G.)
| Decision Date | 24 September 2021 |
| Docket Number | B308221 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re B.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Joseph C., Defendant and Appellant S.P., Intervener and Respondent. |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No 20CCJP04234F, D. Brett Bianco, Judge. Affirmed.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Jesse McGowan, under appointment by the Court of Appeal, for Intervener and Respondent.
In August 2020, the Los Angeles County Department of Children and Family Services (the Department) filed a dependency petition on behalf of four-year-old B.G. and his six siblings, alleging mother engaged in domestic violence with the youngest sibling's father. At the initial hearing following the children's detention, the juvenile court found Bobby G., with whom mother shared joint custody of the six older children, to be B.G.'s presumed father.
In September 2020, Joseph C. asserted he was B.G's biological father and requested that he be declared B.G.'s presumed father. However, Joseph C. did not seek to rebut Bobby G.'s presumed father status, nor did he ask the court to consider whether his presumption of paternity should displace Bobby G.'s presumption under Family Code section 7612, subdivision (b).[1] The trial court denied Joseph C.'s request, concluding it would not be detrimental to B.G. to recognize only two parents. (See § 7612, subd. (c).)
Joseph C. appeals the order denying his request to be declared B.G.'s presumed father. We conclude substantial evidence supports the court's finding under section 7612 subdivision (c), and Joseph C. forfeited his claim of error under section 7612, subdivision (b). We affirm.
B.G (born February 2016) is the second youngest of mother's seven children.
On August 12, 2020, the Department filed a dependency petition on behalf of the children, alleging mother and the father of her youngest child engaged in violent altercations.
On August 17, 2020, mother filed responses to a parentage questionnaire stating she believed Bobby G. to be B.G.'s father. Mother said she and Bobby G. were married at the time of B.G.'s conception and birth, but were not living together; and Bobby G. openly held himself out as B.G.'s father. Although a paternity test was not performed, mother claimed the family law court had previously declared Bobby G to be B.G.'s father.
According to mother's responses, she and Bobby G. separated in 2018. Records from mother's prior dependency case showed that in November 2017, the juvenile court adjudicated her six oldest children dependents based on findings that she engaged in violent altercations with her former male companion, appellant Joseph C. In July 2018, the juvenile court terminated dependency jurisdiction and awarded Bobby G. sole legal and physical custody of the children, including B.G. In February 2019, the family law court entered a stipulated order between mother and Bobby G. for joint legal and physical custody of the children.
On August 17, 2020, the juvenile court found Bobby G. to be B.G.'s presumed father. The court released Bobby G.'s presumed children, including B.G., to mother's and Bobby G.'s custody in accordance with the existing custody order.
On September 28, 2020, Joseph C. filed a statement regarding parentage, stating he believed himself to be B.G.'s father. He asserted B.G. had lived with him from the child's birth in February 2016 until 2017; he had been paying child support for B.G. since before the child was a year old; there was a 2016 child support order adjudicating him to be B.G.'s father; and he completed a DNA test at the children's court that confirmed B.G. as his biological child. He also said that he had an ongoing case in the superior court to obtain shared custody and visitation rights and that Bobby G. was agreeable to such an arrangement. Joseph C. claimed he had held B.G. out to the “whole world” as his child, but mother had denied him the opportunity to participate in the child's life.
The same day, Joseph C. made his first appearance in the case to request presumed father status. The juvenile court noted it had already made a presumed parentage finding and remarked that its “understanding” was that it could “not ordinarily find there to be [two] presumed fathers unless the court were to make a finding that it would be detrimental to the minor not to have two presumed fathers.” In response, Joseph C.'s counsel reiterated that his client had been paying child support for B.G. and that Bobby G. was agreeable to Joseph C. sharing custody of the child. Mother's counsel said mother opposed Joseph C.'s request, she stood by her responses to the parentage questionnaire, and she “object[ed] to the court finding [Joseph C.] to be also a presumed father.” B.G.'s counsel did not oppose Joseph C.'s request.
The court decided to “defer a parentage finding” for Joseph C., but “tentative[ly]” indicated it was “inclined to say that he would be a presumed father as well.” It directed the Department to gather information regarding Joseph C.'s family law case.
On October 13, 2020, the Department filed a report detailing its investigation and interviews with Joseph C. and mother regarding Joseph C.'s parentage claim. Joseph C. again claimed he had completed a DNA test that confirmed he was B.G.'s biological father, but he said he could not locate the results. He said he saw B.G. often until he and mother separated two years earlier, and he had not seen B.G. for over a year. He produced a monthly billing statement for B.G.'s child support payments. The Department reported it had accessed Bobby G.'s child support records, which showed B.G. was the only child for whom Bobby G. was not ordered to pay child support.
Mother reported B.G. considers Bobby G. to be his father; Bobby G. holds B.G. out as his son; and B.G. and her other children stay with Bobby G. every week under their shared custody order. Contrary to Joseph C.'s claim, mother said he refused to take a DNA test and he never came to see B.G., even though he knew where the child lived. She said she filed for child support because Joseph C. had told his family and her family that B.G. was not his son. She also said the court ordered Joseph C. to pay child support after he refused to take a DNA test.
On October 14, 2020, Joseph C. appeared, through appointed counsel, to renew his request for a presumed father finding based on his biological connection to B.G., the child support payments, and his attempts to hold himself out as B.G.'s parent. B.G.'s counsel joined with Joseph C.'s request. She argued it would be detrimental to B.G. if Joseph C. was not found to be a presumed father, as Joseph C. had provided financial support and had attempted to have a relationship with the child. Mother objected to the request. She argued Joseph C. had never been “a father figure” and his payment of child support was insufficient to grant him presumed father status.
The court denied Joseph C.'s request for presumed father status. The court explained it had already found Bobby G. to be the presumed father; Bobby G. had “assumed a parental role and meets all the criteria for a presumed father”; and, in order to also find Joseph C. a presumed father, “the court would have to find that it would be detrimental to the minor not to recognize the second father, ” which was “simply not the case.” The court ruled Joseph C. would “remain [an] alleged” father.
The court entered an order denying Joseph C.'s request for presumed father status and finding Joseph C. to be “the biological and alleged father of the child.” The court also ordered B.G. and the older children to remain placed with mother and Bobby G., with family maintenance services in place, and granted Joseph C. supervised visits with B.G.
The Uniform Parentage Act of 1973 (UPA), section 7600 et seq., provides the statutory framework for judicial determinations of parentage, and governs private adoptions, paternity and custody disputes, and dependency proceedings.
There are three types of fathers under the UPA: “alleged, ” “biological, ” and “presumed.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595-596.) “A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an ‘alleged' father.” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15 (Zacharia D.).) “A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status.” (Ibid.)
“Presumed father status ranks highest.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801; Zacharia D., supra, 6 Cal.4th at pp. 448-449; M.C., supra, 195 Cal.App.4th at p. 212.) “[O]nly a presumed... father is a ‘parent' entitled to receive reunification services under [Welfare and Institutions Code] section 361.5 ” and custody of the child under Welfare and Institutions Code section 361.2. (Zacharia D., at p. 451; Jerry P., at p. 801.) The need to establish a father's status in a dependency proceeding is therefore “pivotal, ” as it determines the extent to which he may participate in the proceedings and the rights to which he is...
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