Zacharia D., In re

• Decision Date: 06 December 1993
• Docket Number: No. S028817,S028817
• Citation: 6 Cal.4th 435,24 Cal.Rptr.2d 751,862 P.2d 751
• Parties: , 862 P.2d 751 In re ZACHARIA D., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. WENDY H. et al., Defendants and Appellants.
• Court: California Supreme Court

Page 751

24 Cal.Rptr.2d 751

6 Cal.4th 435, 862 P.2d 751

In re ZACHARIA D., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. WENDY H. et al., Defendants and Appellants.

No. S028817.

Supreme Court of California,

In Bank.

Dec. 6, 1993.

Rehearing Denied Feb. 24, 1994.

Steven D. Schatz, Tustin, and Stephen S. Buckley, Mission Viejo, under appointments by the Supreme Court, for defendants and appellants.

Terry C. Andrus, County Counsel, and Michelle Ben-Hur, Deputy County Counsel, for plaintiff and respondent.

Lloyd M. Harmon, Jr., County Counsel, San Diego, Susan Strom, Chief Deputy County Counsel, Gary C. Seiser and Kathryn E. Krug, Deputy County Counsel, as amici curiae on behalf of plaintiff and respondent.

Harold La Flamme, Duane T. Neary and John L. Dodd, Santa Ana, under appointments by the Supreme Court, for Minor.

ARABIAN, Justice.

In this case we determine whether the juvenile court properly declined to order either reunification services for Javan W. with his biological son, Zacharia D., or Javan's custody of Zacharia. In particular, we decide whether one who is a biological but not a presumed father is entitled to reunification services under Welfare and Institutions Code section 361.5, and whether such services may be requested for the first time after the 18-month review hearing. We further decide whether a biological but nonpresumed father is entitled to immediate placement of the minor in his custody under Welfare and Institutions Code section 361.2, and whether that section is applicable 20 months after the child is removed from the custodial parent's home. We conclude that only a presumed father is a "parent" entitled to reunification services with and/or custody of his child under the applicable statutory sections, that reunification services are not available under Welfare and Institutions Code section 361.5 after any reunification period has been terminated, and that section 361.2 applies only when the child is first removed from the custodial parent's home. We thus reverse the judgment of the Court of Appeal.

I. FACTS AND PROCEDURAL BACKGROUND

Zacharia D. was born to Wendy H. on August 12, 1989, with methamphetamine traces in his blood. Wendy named Lee D. as Zacharia's father on the birth certificate. Wendy and Lee had been together for four years, and were living together at or about the time Zacharia was conceived. Nine months prior to Zacharia's birth, however, Wendy spent approximately two weeks with a prior high school boyfriend, Javan W., and engaged in numerous acts of sexual intercourse with Javan during this time period.

On August 13, Zacharia was taken into protective custody by the Orange County Social Services Agency (County). On August 14, a dependency petition was filed, alleging that Zacharia came within WELFARE AND INSTITUTIONS CODE SECTION 300¹, subdivisions (a) (serious physical harm), and (b) (failure to protect) as a result of Wendy's intermittent prenatal ingestion of crystal methamphetamine and Lee's failure to protect Zacharia from Wendy's illegal drug use. The petition further alleged that both Wendy and Lee had a history of drug use and transiency. On August 16, a detention hearing was held, and Zacharia was ordered released to his parents' custody.

At the pretrial hearing on September 11, 1989, Wendy and Lee pled no contest to the allegations of the amended petition, and Zacharia was declared a dependent of the juvenile court. The court authorized Zacharia's supervised release to Wendy and Lee and approved a service plan.

Wendy and Lee failed to attend drug rehabilitation or parenting classes, apparently continued their drug use, and abandoned Zacharia to the care of his stepgrandmother. On October 20, the County again took custody of Zacharia. On October 24, 1989, the County filed a supplemental petition alleging under section 300, subdivision (b), that Wendy and Lee were not satisfying the service plan, and were unable to care for Zacharia. At the time of the petition, Wendy had left Lee and Zacharia, and her whereabouts were unknown.

On October 25, a detention hearing was held, and Zacharia was detained in protective custody. At the pretrial hearing on November 17, Wendy and Lee, having apparently reunited, pled no contest to the allegations of the amended supplemental petition. A reunification plan was adopted by the court.

At the six-month review hearing on March 9, 1990, all parties stipulated that Zacharia's return would create a substantial risk of detriment to his physical or emotional well-being.

In November 1990, Wendy and Lee again separated. According to Javan, Wendy moved in with Javan and his parents. At this time, Javan first learned that Zacharia existed. Javan asked "to see the pictures of [Wendy's] child ... and I compared them to mine and we looked identical...." ² Javan met Zacharia in January 1991, but remained unsure as to whether he was the father. Javan did not attempt to establish a relationship with Zacharia during this period, or indicate any willingness to support him. Nor did he communicate his suspicions to the County or the court.

Meanwhile, the dependency proceedings concerning Wendy, Lee, and Zacharia continued. At the 12-month review hearing held on January 25, 1991, the parties stipulated that Wendy and Lee had not substantially complied with the reunification plan, and that Zacharia's return would create a substantial risk of detriment to his physical or emotional well-being. An 18-month review hearing was ultimately set for March 14, 1991.

On February 19, Lee informed the social worker that he had decided to terminate all reunification efforts with Zacharia. ³

On March 14, 1991, fearing that Wendy would lose Zacharia at the 18-month review hearing, Javan came forward and asked the court if he could be tested for paternity. ⁴ The court granted the request At the 18-month hearing on March 20, Wendy testified that she never completed the parenting and drug programs required by her reunification plan. She also said that she had been in a personal relationship with Javan for approximately one month. Wendy, who was 22 at the time of the hearing, had known Javan since she was 16. Javan was 23 years old at the time of the hearing.

[862 P.2d 755] and appointed counsel for him. the 18-month hearing was trailed to march 20.

Javan also testified at the March 20 hearing. In response to the question, "When was Zacharia born?" the following colloquy occurred: "I believe it was August she told me." "Of when?" "I'm not sure if it was '89 or '90; '89, I think." In response to the question of when Zacharia was conceived, Javan testified, "I believe it was '88; yeah, '88 or '89." Counsel inquired, "It sounds like you can't tie it down any closer than one year; is that right, '89 or '90?" "No."

Javan was also asked, "What was it exactly that ... compelled you suddenly to come forward?" He replied, "I thought it was time." Upon further inquiry, he explained, "She was losing her baby, why wouldn't I come forward?"

The court found that Zacharia could not be returned to Wendy because to do so would create a substantial risk of detriment to his physical and emotional well-being. The court further found that reasonable reunification services had been offered or provided to Wendy, and terminated those services. A section 366.26 permanency planning hearing was set for July 10, 1991.

On April 24, 1991, the results of Javan's blood tests were filed with the court. They revealed a 99.9 percent probability that Javan was Zacharia's biological father. Javan's "18-month hearing," ⁵ as referred to by the parties, was scheduled for April 25. However, on or about April 24, Javan was incarcerated for a probation violation resulting from a felony drug conviction. ⁶

On May 8, 1991, the court granted Javan leave "to file any motions with respect to determination of parenthood" no later than May 21, 1991. On May 30, 1991, Javan filed a complaint to establish a parental relationship in the juvenile court. Javan sought custody and visitation rights. He was still incarcerated at this time. At a hearing held on this date, counsel stipulated that Javan was Zacharia's biological father.

On June 7, 1991, at Javan's "18-month review hearing," the court declared that Javan was Zacharia's natural father, and that a father-child relationship under Civil Code section 7006 existed.

At the hearing, several witnesses testified, including Lon Soltero, Zacharia's social worker. Soltero testified that prior to Javan, he had never had a case where a new father had come forward after the 18-month reunification period had expired. When Javan first claimed to be the father, Soltero was internally instructed by the County not to arrange for any visitations for Javan until it was determined "whether or not he had any right to a visit."

Once the blood test results were received at the end of April, Soltero asked Javan if he would like visitations with Zacharia. Javan said yes. Because Javan was incarcerated, Soltero suggested he avail himself of parenting and drug rehabilitation classes As of June 7, 1991, Javan had not requested that Zacharia visit him in jail, requested any reunification services, or taken either a parenting or drug rehabilitation class. Soltero was not aware of any effort by Javan since he came forward to support Zacharia, give him any gifts, write him any letters, or make any inquiries as to Zacharia's needs, state of health, or what kind of child he was. In Soltero's opinion, if Javan committed himself to developing a relationship with Zacharia, to parenting classes and drug testing and counseling, and if he stabilized his income and place of residence, he might in six months be ready for a trial visit with, but not custody of, Zacharia.

"anything of that nature that might be available to him in jail." Soltero's "thinking was the sooner he gets going on that, the

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