Filed 12/9/13 Marco V. v. S uperior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). Thi s opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA
MARCO V

. et al. , Petitioner,

v. THE SUPERIOR COURT OF SAN DIEGO COUNTY , Respondent; D06 4414 (San Diego County Super. Ct. No. J 518446C )

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al. , Real Part ies in Interest.

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section
366.26 1 hearing. Cynthia Bashant , Judge. Petition denied ; r equest for stay denied.

Dependency Legal Group of San Diego and Elizabeth A. Klippi for Petitioner Marco V. Dependency Legal Group of San Diego and Amanda J. Gonzales for Petitioner Cathey
B.

1 Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.2

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Lisa M. Maldonado, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.
Marco V. seeks review of juvenile court findings and o rders denying family reunification services to him under Welfare and Institutions Code section 361.5, subdivision (a) and setting a section 366.26 hearing. Marco asserts he has a fundamental right to parent his child. He argues the application o f section 361.5, mandating reunification services to mothers and statutorily presumed fathers, and Family Code section 7611, describing a presumed father, contravenes his rights to due process and equal protection under the law as a biological father who cannot att ain presumed father status under statutory criteria

. Marco maintains that he and his child ' s mother and presumed father are similarly situated and therefore under principles of equal protection, he is en titled to court

- ordered family reunification service s . 2 Reviewing courts have long recognized that the presumed father statute and related statutory scheme s violate the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent the statutes allow a mother or th ird party to preclude the child ' s biological father from becoming a presumed father

. ( Adoption of Kelsey S . (1992) 1 Cal.4th 816 ( Kelsey S .); In re Jerry P. (2002) 95 Cal.App.4th 793, 801

- 8 02 ( Jerry P .).) To avoid constitutional infirmity, a biological f ather who has been prevented by another party
from meeting statutory requirements for presumed father status may show he ha s demonstrated a full commitment to his parental responsibilities and obtain a status equal to that of his child ' s mother. ( Jerry P. , at pp. 801

- 802. )

2 The child's mother, Cathy B., did not file a writ petit ion. She joins in the argument and position of Marco.3

Marco was not deprived of due process or equal protection of the law. He had the opportunity to establish his status as a Kelsey S . father. He also had the opportunity to receive discretionary services under section 361.5, subdivisi on (a) if he could show that services would benefit the child

. Marco does not challenge the juvenile court ' s finding that ordering services to him would not benefit his child. In view of Marco ' s history of crime , repeated incarceration and drug use, the court did not abuse its discretion in denying reunification services to him. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND
Marco and Cathy are the parents of Michelle V., who was born healthy in June 2013. Cathy had an open dependency case for two of her other children due to methamphetamine

use. None of her seven children were in her care. Cathy tested positive for methamphetamine when she was six months pregnant with Michelle. T he San Diego County Health and Human Services Agency (Agency) detained Michelle at birth and filed a section 300 petition alleging the child was at substantial risk of harm due to her mother ' s substance abuse and lack of amenability to treatment

. (§ 300, subd. (b).) At the time of Michelle ' s birth, Cathy was marr ied to Fernando B., who was serving a lengthy prison term in Arizona. Their divorce was pending. Marco was in jail in San Diego County. He had been arrested in December 2012 on charges of battery, assault and conspiracy
to commit auto theft . Marco had a convict ion for possession of controlled substances with intent to sell . He was subject to a gang injunction and had been involved with the juvenile and criminal justice system s since he was 12 years old

. Marco last worked in 2009 or 2010.4

At the dete ntion hearing, the juvenile court appointed counsel for Marco and authorized paternity testing. The court designated Cathy ' s husband, Fernando, as Michelle ' s presumed father. Marco was released from jail the day after the detention hearing. He and Cat hy lived together at his mother ' s house. Paternity testing confirmed that Marco was Michelle ' s father. Michelle was placed with her paternal aunt (caregiver) . Marco and Cathy visited Michelle three times a week at her caregiver ' s home. The social worke r observed that Marco and Cathy were attentive to Michelle ' s needs and spoke to her in a loving manner. The Agency recommended the court not order reunification services to Cathy , Fernando and M arco , and schedule a hearing to select and implement a perm anency plan for Michelle under section 366.26

. Shortly before the jurisdictional and dispositional hearing, Marco filed a motion to be designated a presumed parent under the Due Process and Equal Protection Clauses of the
U nited States Constitution and Kelsey S

. Marco acknowledged he did not qualify for presumed father status under any provision of Family Code section 7611. The juvenile court construed Marco ' s motion as a request for Kelsey S. status

. Marco testified he wanted to participate in reun ification services as Michelle ' s presumed father. The Agency had given him referrals to voluntary substance abuse treatment services but he had not
enrolled because he went to an address that was no longer current. Marco attended N arcotics Anonymous meet ings at least once a week. He contacted a parenting program but needed authorization from the social worker to enroll. He did not complete a drug test because he had too much to do and no transportation. Marco visit ed Michelle three times a week. He kn ew5

Cathy was pregnant before he was incarcerated. She visited and telephoned him while he was in jail

. He asked he r about the baby and her health and pregnancy . Marco was willing to accept full responsibility for Michelle. Marco had three other childre n with two different mothers. The children ' s mothers would not let him see his children. He did not know where they lived. The juvenile court found that Marco did not show a full commitment to his parental responsibil ities during Cathy ' s pregnancy. M arco knew Cathy was pregnant before he was incarcerated . His own actions kept him from supporting her, attending prenatal visits and being present at Michelle ' s birth. Although Marco " stepped up to the plate " after Michelle ' s birth , he strugg l ed to keep appointments for services that would allow him to parent his daughter. The juvenile court denied Marco ' s motion for Kelsey S . status and proceeded to the jurisdictional and dispositional hearing

. Cathy testified she and Marco visited Michelle three days a week. They talked to her, changed her diaper and fed her. She discussed her participation in substance abuse treatment and other services. Her efforts were different this time because she had the support and love of Marco and his family. Cathy was a ware Marco had a history of methamphetamine use. The social worker said Cathy had participated in substance abuse treatment services for six weeks. Her parental rights to two of M ichelle ' s half siblings were terminated two weeks earlier. The social wo rker referred Marco to the substance abuse specialist on June 28 and July 5, 8, 29 and 30 , but he had not yet attended an intake or started a program. Marco, who was 22 years old, had an extensive criminal history. He spent most of his adult life in and out of jail. Marco failed to drug test when asked. The social worker said it was not in Michelle ' s best6

interests to provide services to Marco or Cathy. Michelle needed caregivers who placed her needs first and would not jeopardize her well

- being by a l ifestyle associated with drugs and crime. The juvenile court sustained the section 300 petition by clear and convincing evidence, removed Michelle from Cathy ' s custody and found that placement with Marco or Fernando would be detrimental to Michelle

. The court denied reunification services to Cathy and Fernando. (§ 361.5, subds. (b)(10), (11), (13) & (e)(1).) Th e court found that ordering services for Marco would not benefit Michelle and denied his request for services . (§ 361.5, subd

. (a)

. ) The court set a section 366.26 hearing for December 11, 2013.
Marco petition ed for review of the juvenile court ' s orders. (§ 366.26, subd. ( l ); Cal. Rules of Court, rule 8.452.) He asks this court to reverse the orders setting a section 366.26 hearing, and to remand the matter with directions to the juvenile court to enter an order for family reunification services. This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
Marco asserts he has a fundame ntal right to parent his child . He argues the application of section 361.5, coupled with his inability to meet criteria for presumed father status under Family Code section 7611, violates his rights to due pro cess and equal protection as guaranteed by the United States Constitu t ion

. Marco further contends the juvenile court applied too stringent a standard for determining Kelsey S

. status

. He argues his circumstances with respect to family reunification are similar or better than th os e of his child ' s mot her and presumed7

father and the disparate treatment he receives under the statutory scheme violates his right to equal protection

. A challenge to the constitutionality of a statutory scheme is a question of law subject to de novo review. ( Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801 .)
A
Marco ' s Rights to Due Process and Equal Protection Were Not Violated The California dependency system differentiates be twe en the rights of presumed, natural and alleged fathers. ( In re Zacharia D . (1993) 6 Cal.4 th 435, 448 ( Zacharia D .) .)

" [N]atural fathers [ have ] far less rights than both mothers and presumed fathers have under California ' s statutory system. " ( Kelsey S ., supra , 1 Cal.4th at p. 844.) To become a presumed father, a man must meet one or more of the criteria specified in Family Code section 7611. ( Zacharia D ., at p. 451. ) Under the California dependency scheme, only mothers and statutorily presumed fathers are entitled to court

- ordered reunification services. (§ 361.5, subd. (a).) 3

3 We reject Marco's assertion that biological fathers, without any further showing, have rights equal to those of the child's mother in dependency cases. There is a rational relationship to affording a biological father less rights in dependency cases than a mother or presumed father. Not mandating services to a biological father is rationally related to the furtherance of a legitimate government interest in conserving resources and protecting childr en and their families. The biological father of the child may be a rapist or a sperm donor, his identity may be unknown or he may have no interest in parenting his child. (See In re Jerry P. , supra, 95 Cal.App.4th at pp. 801

- 8 02 .) Mandating family reuni fication services to all biological fathers regardless of their circumstances and relationship to the child would expend scarce public resources and not serve the best interests of the child and his or her family. (Cf. In re Alanna A . (2005) 135 Cal.App.4 th 555, 566 [in some circumstances, the general rule favoring reunification services is replaced by a legislative assumption that offering services would be an unwise use of government resources].)8

In 1992, the California Supreme Court addressed the claim the statutory scheme impermissibly allowed a mother to preclude her child ' s father from acquiring presumed father status and eliminate his need for consent to an adoption regardless of whether he was a demonstr ably fit parent

. ( Kelsey S ., supra , 1 Cal.4th at p. 825.) The petitioner i n that case
asserted the statutory scheme violat ed his federal constitutional rights to equal protection and due process rights; specifically , that he should not be treated differe ntly than his child ' s mother. ( Id . at p. 844.) Kelsey S . holds that the presumed father statute and related adoption statutory scheme

" violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent th at the statutes allow a mother unilaterally to preclude her child ' s biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child ' s best interest. 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 parental 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 parent al rights are entitled to equal protection as those
of the mother. " ( Kelsey S., supra, 1 Cal.4th at p. 849.) In 2002, t he Second District Court of Appeal applied the constitutional analysis in Kelsey S . to dependency proceedings. ( Jerry P. , supra , 95 Cal .App.4th at pp. 8 10

- 811 .) Jerry
P . holds that t he scheme for determining presumed father status in dependency proceedings is9

unconstitutional insofar as it permits the mother or a third party unilaterally to preclude a man from becoming a presumed father by preventing him from receiving the child into his home despite his demonstration of a full commitment to his parental responsibilities b efore and after the child ' s birth. ( Id . at pp. 80 2

- 803.) Like the fathers in Kelsey S . and Jerry P ., Marco was unab le to qualify as a presumed father under Family Code section 7611, subdivision (d), which provides that a man is presumed to be a natural father of a child if he receives the child into his home and openly hold s out the child as his own. No other provisio n of Family Code section 7611 would apply. Marco did not have any opportunity to bring Michelle into his home because the Agency had custody of her from birth. He did, h owever, have the opportunity both before and after his daughter ' s birth to demonstrat e his full commitment to his parental responsibilities. A ny unconstitutional inequities that may be present in the statutory scheme were remedied by the juvenile court ' s consideration of Marco ' s request for presumed father status under Kelsey S

. Marco ' s rights to due process and equal protection were not violated.
B The Juvenile Court Correctly Applied the Kelsey S. Factor s Marco complains the juvenile court applied too stringent a standard when determining whether he had demonstrated a full commitment t o his daughter. He contends in view of his incarceration it was unfair of the juvenile court to consider such factors as whether he attended mother ' s prenatal visits, provided financial support to the mother, paid for medical expenses , took legal action t o establish paternity before the child was born and was present at the hospital when the child was born. Marco argues the applica tion of these factors i s the equivalent of "10

' go to prison , lose your child ' " and is not permissible under California law. ( In re Brittany S

. (1993) 17 Cal.App.4th 1399, 1402.) In deciding whether a man qualifies for Kelsey S . status, a court consider s all factors relevant to whether the biological father has assumed his parental responsibilities as fully as circumstances perm it. " The father ' s conduct both before and after the child ' s birth must be considered. " ( Kelsey S. , supra , 1 Cal.4th at p. 849 .) Once he knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities an d demonstrate a willingness to assume full custody of his child

. A court should also consider the father ' s public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child

. ( Ibid .) These factors were formulated in the context of an adoption case in which the child ' s mother wanted to place the child for adoption over the objection of his presumptively fit father , who wanted to raise his son . ( Id. at p p . 821

- 822, 849 .)
Marco ' s circumstances are different. T he juvenile court ' s remarks focused on the fact Marco knew that Cathy was pregnant with his child before he was arrested and jailed. The

court reasonably inferred that Marco ' s decision to continu e his criminal activit ies , with the attendant risk of incarceration, did not evince a full commitment to his parental responsibilities before Michelle ' s birth

. ( Jerry P ., supra , 95 Cal.App.4th at pp. 80 2

- 803.) The court did not abuse its discretion when it distinguished between a situation in which the child ' s mother prevented the child ' s biological father from attending prenatal appointments and being present at the hospital and a situation in which the biological father ' s life choices prevented him from

a ssuming his parental responsibilities. The juvenile court did not apply an incorrect legal11

standard when it determined that Marco did not promptly attempt to assume his parental responsibilities . ( Kelsey S ., supra , 1 Cal.4th at p. 849; Jerry P ., supra , 9 5 Cal.App.4th at
pp. 802

- 803.) After Michelle was born, Marco visited her regularly. He and Cathy continued their relationship , and Marco ' s family was involved in Michelle ' s care. The juvenile court gave Marco credit for his actions . The court also foun d that Marco was having problems meeting his responsibilities to address the issues that would prevent him from safely parenting Michelle

. Although Marco said he was fully committed to his daughter , he told the social worker he was " not going to be rushin g trying to get t hing s done as fast as possible

. . . . I want to get my daughter back and I am going to do what I have to do. I am just not going to be jumping through hoops trying to get everything done. " T he social worker referred Marco to a substance abuse specialist in late June , and gave him four additional referrals in July . By mid

August, Marco had not attended an intake or started treatment

. He missed a drug test. Marco squandered his opportunity to demonstrate his commitment to his parental r esponsibilities when he chose to delay participating in the services that would stabilize his circumstances and improve his ability to safely parent his daughter. The juvenile court could reasonably conclude that Marco did not demonstrate a full commitmen t to his parental responsibilities and did not abuse its discretion when it denied Marco ' s request for Kelsey S . status . ( Kelsey S ., supra , 1 Cal.4th at p. 849; Jerry P ., supra , 95 Cal.App.4th at pp. 802

- 803.)12 DISPOSITION The petition is denied. The r equest for stay is denied.

O ' ROURKE, J.
WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.