L.A. Cnty. Dep't of Children & Family Servs. v. W.K. (In re A.K)
| Decision Date | 24 November 2020 |
| Docket Number | B305483 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re A.K, a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. W.K., Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. 19CCJP07500)
APPEAL from order of the Superior Court of Los Angeles County, Emma Castro, Judge Pro Tempore. Affirmed.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
W.K. appeals from a juvenile court order denying him presumed father status as to now four-year-old A.K. (the child), the biological daughter of H.J. (Mother) and E.L. (Father). At the time the child was born, Mother and W.K. were married, and Mother and the child lived with W.K. for at least some of the child's young life. In the dependency proceedings arising from Mother's substance abuse and Mother and W.K.'s domestic violence, both W.K. and Father sought presumed father status as to the child, which the court granted to Father only. W.K. identifies errors in the court's analysis of the two men's competing requests for parental status, an analysis governed by Family Code sections 7611 and 7612.1 Namely, he argues that the court should have made express findings under section 7611 before proceeding to the section 7612 portion of the analysis, and that the court misunderstood the detriment standard applicable under section 7612, subdivision (c). We agree that the court erred, but disagree that these errors prejudiced W.K.
The court's written statement of decision included detailed factual findings regarding W.K.'s relationship with the child, the extent to which she lived with him or received financial support from him, and his motives in seeking presumed father status. These findings are amply supported by substantial evidence. Given these findings, it is not possible—let alone reasonably probable—that making express section 7611 findings and/or applying the correct section 7612 detriment standard would have led the court to reach a different conclusion regarding W.K.'s parental status. As such, the court's errors do not require reversal. Accordingly, we affirm.
Shortly before W.K. and Mother married in October 2015,2 Mother had a sexual relationship with Father. In May 2016, Mother gave birth to the child. W.K. was present for the child's birth and signed a voluntary declaration of paternity. W.K.'s name appears on the child's birth certificate.
Father saw pictures of the child through social media and noticed a likeness between the child and his older daughter, but did not reach out to Mother, because she was married to W.K., and because W.K. and Mother had represented through social media that the child was theirs.
Several months after the child's birth, W.K. began to question whether the child was his biological child and took a paternity test, which confirmed he was not. The evidence in the record includes varying accounts of how W.K. reacted to this news. According to W.K., he "let [the] (paternity findings) go" and continued to treat the child as his own, although he did tell some family and friends about the test results. According to Mother and the child's teenage maternal half sisters,3 W.K.'s relationship with the child deteriorated thereafter. Mother stated that W.K.
It is undisputed that W.K. has always introduced the child to friends and family as his daughter, and that, when the child began speaking, she called him "Daddy" or "Daddy [W.]"
There is conflicting evidence in the record regarding the child's living situation. According to W.K. and his older daughter, J.K.,4 the child and Mother lived with W.K. and J.K. in W.K.'s home until Mother and W.K. separated sometime in 2018, although there were short periods of time when Mother would leave with the child and stay with her ex-husband, A.J. Also, according to W.K. and J.K., the child continued to live in W.K.'s home after his final separation from Mother. W.K. claimed he was often the sole caregiver during this time, as Mother would have episodes of binge drinking and be unable to care for the child.
According to Mother, A.J., and the child's maternal half sisters, there were significant periods of time during Mother's relationship with W.K. that Mother and the child lived with A.J. Mother and W.K. would have relationship problems or incidents of domestic violence, and Mother and the child would stay with A.J. for a month or more as a result. According to Mother, sometime in late 2018, Mother and the child began living full time with A.J.
According to Mother and A.J., W.K. took the child without Mother's consent for multiple months in March 2019, refused to tell Mother where the child was, and blocked Mother's communication with the child. Mother stated W.K. did this at other times as well, and would text her stating, "You will never see [the child] again."The child's maternal half sisters similarly told DCFS that W.K. "often" would take the child for weeks or months at a time and refuse to allow them any contact with the child. The child herself told DCFS that W.K. and Mother would "hide" her from each other.
According to W.K. and his older daughter J.K., the child continued living with them after Mother and W.K. separated at Mother's request, so that Mother could participate in substance abuse rehabilitation programs, or because Mother was not capable of caring for the child due to her drinking. Mother acknowledged that, at her request, W.K. did take care of the child on two occasions while Mother participated in 30-day rehabilitation programs, but characterized these as the only times W.K. has been the sole caretaker for the child with Mother's consent.
There are also conflicting accounts regarding the extent to which W.K. provided support for the child financially. According to Mother, W.K. helped provide for the child while Mother and the child were living in his home, but he did not provide any support when they were not living with him, and he denied Mother's repeated requests for financial support after their final separation in 2018. According to W.K. and his older daughter J.K., W.K. has consistently provided for the child, both financially and otherwise.
In April 2019, W.K. filed for divorce from Mother. W.K. reported to DCFS that, in the divorce proceeding, he was seeking "temporary full custody of [the child] until . . . [M]other could prove she was sober." The record does not contain any documents from the divorce proceedings, although it appears DCFS requested them.
It was only in connection with these divorce proceedings that Mother and W.K. learned Mother's previous marriage to A.J. had never been legally dissolved, and thus that Mother and W.K.'s marriage may not be valid.
There is conflicting evidence in the record regarding when Father learned the child was his biological child. At the latest around April 2018, Mother told Father he was likely the child's biological parent and that a paternity test had revealed W.K. was not. Father enthusiastically agreed to become involved in the child's life. Father told "[e]veryone [he] kn[e]w" the child was his child, and started regular visits with her. In 2019, Father began consistent full-weekend visits with the child in his home. Father gave Mother money to assist in supporting the child, and provided all of the child's necessities while she visited him. Around September 2019, the child began calling Father "Daddy [E.]"
According to Mother, W.K. would see pictures Father posted on social media regarding his time with the child and "retaliate by trying to intervene in their relationship."
In October 2019, Father filed a paternity action in family court, naming Mother as the sole respondent, as well as a complaint for joinder of W.K. as a third party. Father sought not only to establish a parental relationship, but sole legal and physical custody of the child, with reasonable visits for Mother, as well as a DNA paternity test "so that [the] [c]ourt can enter a formal determination, that [he was] the father of [the child]."
On October 31, 2019, the child and her maternal half sisters witnessed a violent altercation between Mother and W.K. when Mother and Father served W.K. with court papers.5 This triggered the filing of a Welfare and Institutions Code section 300 petition seeking juvenile court jurisdiction over the child and her half sisters. The petition alleged that longstanding substance abuse by Mother and A.J., a history of domestic violence between Mother and A.J. and Mother and W.K., and the recent violent altercation involving Mother, A.J., and W.K. placed all three children at significant risk. The detention report revealed several prior inconclusive investigations regarding Mother and W.K., based on "reports of alcohol and cocaine use by [Mother and W.K.], domestic violence, court battles and alleged kidnapping."
At the November 2019 detention hearing, both Father...
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