1

Filed 12/12/14 In re N .V. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re N.V., a Person Coming Under the Juvenile Court Law.

SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v. A.V., Defendant and Appellant. A141323
(San Francisco City & County Super. Ct. No. JD13

- 3176)

I.
INTRODUCTION After a contested hearing, t he juvenile court found that A.V. (appellant) is not the presumed father of two

- year

- old N

. V

. (the minor) . Appellant appeals this determination contending substantial evidence does not support the juvenile court ’ s finding

. Viewing
all evidentiary conflicts and drawing all reasonable inferences in su pport of the order
, as
we must , we conclude substantial evidence supports the juvenile court ’ s finding that appellant was not a presumed father and therefore was not entitled to reunification
services

.2 II.
FACTS AND PROCEDURAL BACKGROUND
The minor was born in January 2012. The mother ’ s boyfriend, B.T.
, was present at the birth. A fter the minor ’ s birth, the hospital ’ s social worker reported that mother was planning to resid e with her boyfriend, B.T.
, and his parents. T he mother identified B.T.,
instead of appellant , as the minor ’ s bi ological father. On May 30, 2013, the San Francisco Human Services Agency (the Agency)
became aware of the minor when an anonymous party reported that the minor was residing in a trailer that did not have heat, electricity, running water, or a front door. The
trailer was parked on a business property in San Francisco. The reporting party alleged
the minor was allowed to play on gravel and mother was taking drugs in the minor ’ s
p resence. On June 18, 2013, the Agency filed a petition under W elfare and Institutions Code section 300 alleging the minor was a child described by subdivisions (b) (failure to protect) , (g) (no provision for support)
, and (j) (sibling abuse)

. 1 T he Agency ’ s investigation revealed mother had a history of substance abuse, mental health issues, transience, criminal behavior, and that she had five other children who were not in her care or custody

. After the petition was filed, appellant contacted the Agency and stated
he was the minor ’s father.
In t he Agency ’ s report filed on August 1, 2013, appellant is identified as the
minor ’ s alleged father. It was noted that appellant “ comes by [ the mother ’ s ] trailer 2 to 3 times a week to check up on [ the minor ] and to provide the mother with supplies as
needed. ” The report also indicat ed that appellant ha d unstable housing, wa s unable to work, and d id not have reliable resources to provide for the minor

. At the time, appellant
was scheduled to be in San Francisco Drug Court ’ s intensive outpatient drug p rogram for
the next 6 to 12 months.

1 All subsequent undesignated statutory references are to the Welfare and Institutions Code.3

On August 7, 2013, the Agency filed an amended p etition, identifying appellant as
the minor ’ s biological father. The amended petition alleged, among other things, that appellant was unable to provide for the minor, that he was incarcerated at the time of the petition ’ s filing, and that he had another child who was currently the subject of a dependency action and for whom he was receiving reunification services. A settlement conference on jurisdiction and disposition was held on August 7,
2013. C ounsel was appointed for appellant and the parties were ordered to return for a detention hearing the next day. On August 8, 2013, the Agency filed an a ddendum to the initial jurisdiction r eport. The addendum noted mother h ad been unable to follow through consistently with the
minor ’ s medical appointments, had failed to take advantage of the services offered to her,
and had been unable to locate stable housing. T he minor was eventually placed with the
minor ’ s godparents
, who had been involved in the minor ’ s life since the minor was three days old

. The y had taken the minor into their home on a consistent basis when she was
in her mother ’ s custody (week nights and on weekends) , they had provided her with care and stability
, and they were willing to assume guardian ship of the minor if necessary. The Agency noted the godparents “ treat the minor as their own child ” and the minor was

“ closely bonded to the godparents. ” On August 8, 2013, appellant filed a Judicial Council form JV

- 505 (S tatement Regarding Parentage). In this form, appellant stated the minor and mother had lived with him from March to June, 2012 and from September to December 2012. The parties entered into a stipulation on August 9, 2013, that a ppellant was the minor ’ s biological father based upon DNA test results from March 6, 2013. On December 5, 2013
, a supplemental section 387 petition was filed stating that
mother was discharg ed from her drug treatment program due to a positive drug test. The supplemental petition also indicated appellant was unable to provide care and support for
the minor because he was in the San Francisco County Jail

. On December 13, 2013, a referral was completed for appellant to begin weekly supervised visit s with t he minor at his residential substance abuse recovery program.4

On January 14, 2014, appellant filed his first motion seeking presumed father

status. 2 In support of the motion
, appellant declared, under penalty of perjury, that he was present at the minor ’ s birth and that the minor and mother lived with him after the
minor ’ s birth

. Thereafter, t he y continued to live with him “ on and off in San Francisco ”
when mother was homeless. Appellant also conceded t o his “ great regret and frustration ” he never sig ned the minor ’ s birth certificate . He claimed that prior to entering a residential treatment facility where he currently resided, he “ visited my daughter every other day since her birth with no exceptions. ” He also claimed to have provided financial
assi stance to the minor
, although the amo u nt was not substantial “ due to the fixed income I receive from [Social Security] disability. ” In support of his motion for presumed father status, appellant submitted a letter
from the residential drug treatment program that he had entered o n December 12, 2013. The letter states appellant expressed on numerous occasions “ his daughter [has] been one of his primary source [ s ] of inspiration to seek recovery. ” One of the program ’ s missions

was to “ offer comprehensiv e services that assist in the reunification process. ” While residing there , appellant had received two supervised visits from the minor. It was reported by the program ’ s clinical case manager that appellant was “ attentive to her needs and there appears t o be a strong bond between them. ” Opposition wa s filed by the minor ’ s counsel who indicated “ [w]hile [appellant]
has k n own [the minor], and visited her as he could, [appellant] has never assumed a parental role in her life, nor provided for her

. . . day to day care, comfort and needs. In fact, that role has been performed by [her godparents]. ”
O n January 22, 2014, the court denied, without prejudice, appellant ’ s motion for presumed father status on the ground that it was conclus o ry in nature

. On that date, the

2 “ [T]he need to establish a father ’ s status in a dependency proceeding is pivotal; it determines the extent to which he may participate in the proceedings and t he rights to which he is entitled. [Citation.] [¶]

. . . [¶]

. . . ‘ [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 I nstitutions Code section 361.2. [Citations.] ” ( In re M.C. (2011) 195 Cal.App.4th 197, 211

– 212 ( M.C. ) .)5

Agency filed a second addendum report. That report noted that appellant ’ s parental rights had been terminated in a separate dependency matter involving another child. The Agency recommended that supportive services be provided to appellant , not for the purposes of reunification, but in order for him to improve his parenting skills “ because
the minor ’ s emotional, psychological, and social well

- being would benefit

. . . by building a relationship with her father

. ”
On February 21, 2014, appellant ’ s supplemental motion for presumed father status
was filed
, requesting an evidentiary hearing

. T he court held a contested evidentiary hearing o n appellant ’ s supplemental motion on March 11, 2014. The court heard testimony from two witnesses

–– appellant and the minor ’ s godmother. In his testimony, appellant indicated “ I want to provide for [the minor] , take care of her, I want her to live with me. ” He admitted that he was not present at the minor ’ s birth and that the minor and the mother did not live with him after the minor ’ s birth. In this respect, a ppellant ’ s testimony conflicted with the declaration he submitted under penalty of perjury in support of his motion for presumed father status. He also gave a completely different account of the times h e had allowed the mother and minor to reside in his home, which now added up to over a year in time, instead of just a few months.
When cross

- examined about the various and differing timeframes he claimed the minor and mother resided with him, appellant t estified that he was not “ good with dates ” and was only “ guess ing [ at ] how long ” the mother and minor stay ed with him at his
residence. Appellant also admitted he never made any effort to put his name on the minor ’ s birth certificate, sign a voluntary dec laration of paternity, or petition the family court to obtain custody of the minor , even though he knew long before these dependency proceedings began that he was the minor ’ s biological father. He testified the only reason
he obtained DNA verification of his status as the minor ’ s biological father was to allay
his mother ’ s concerns that the minor was not his child.
T he minor ’ s godmother testified that she got involved with the mother because the mother dated the godmother ’ s brother at one time. The mothe r would call, and the6

godmother would pick the minor up , frequently at hotels or motels where the mother could get a voucher, and the godmother would take the minor home for the night or for the weekend. The godmother indicated that when mother lived with appellant, “ she would stay there for as long as she can, and then she would leave and then go back, stay there, and then leave. ” During the times the mother lived with appellant, the mother would still call on the godmother to care for the minor . Once or twice, appellant would come out and hand her the minor. She testified appellant would give her some diapers and formula and would always say “ if I needed anything, let [him] know. ” On March 13, 2014, after taking the matter under submission fo r two days, the
court denied appellant ’ s motion for presumed father status. 3 In doing so , the court was clearly troubled by the discrepancies between appellant ’ s declaration filed in support of
his motion seeking presumed father status and the testimony p resented at the March 11, 2014 hearing. As to the minor and mother ’ s residency with appellant , the court found
that the t ime line “ is anything but completely clear

. ” However, the court held it was largely premised on “ mother ’ s wanderlust ” instead of appellant ’ s “ proactive ” efforts to build a family unit. The court also noted that appellant ’ s paternity test, accomplished more than year after the minor ’ s birth, was only obtained to reassure appellant ’ s mother
that the minor was indeed appellant ’ s biological child and was not used to assert custody

or as means getting his name on the birth certificate

. In the end, f

or the court, the pivotal q uestion came down to “ does [appellant] have a substantial familial relationship with this child? ” The cou rt observed “ there is nothing
in the record that talk s about [ appellant ’ s] caretaking, his hand

- on caretaking of this
child. Whether it ’s feeding, cleaning up after her, changing her diapers, bathing her, putting her to bed, playing with her.

. . . And there is really nothing there. ” Therefore,
the court believed the “ p rovision of services to [appellant] here in the absence of such a

3 In reaching its decision, the court indicated it was not considering appellant’s other dependency case and was not considering certain pleadings filed by the minor’s counsel opposing appellant’s motion for presumed father status.7

relationship isn ’ t really reuniting a family, it is attempting to create a new one. ” This appeal followed.
III.
DISCUSSI ON
A. Standard of R eview

“ We review a juvenile court ’ s determination of presumed parentage status under
the substantial evidence standard. [Citations.] ‘ [W]e review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the
order. [Citation.] We do not reweigh the evidence but instead examine the whole record
to determine whether a reasonable t rier of fact could have found for the respondent. [Citation.] ’ [Citation.] ” ( M.C. , supra , 1 95 Cal.App.4th at p. 213.) B. Statutory Background

“ The Uniform Parentage Act (Fam. Code, § 7600 et seq.) (Act) provides the statutory framework by which California courts make paternity determinations. [Citations.] Under this statutory scheme, California law distinguishes ‘ alleged, ’

‘ biological, ’ and ‘ presumed ’ fathers. [Citation.] ‘ 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. [Citation.] ’ [Citation.] ‘ A biological or natural father is one whose biological paternity has been established, but
who has not achieved presumed father status

. . . . ’ [Citation.] ” ( In re J.L. (2008) 159 Cal.App.4th 1010, 1018, fn. omitted.)

“ Presumed father status ranks highest. ” ( In re Jerry P. (2002) 95 Cal.App.4th 793, 801 ( Jerry P. ) .) Presumed fathers are vested with greater parental rights than alleged or biological fathers

. ( In re Zacharia D. (1993) 6 Cal.4th 435, 448

– 449.)

“ ‘ [O]nly a presumed

. . . father is a “ parent ” entitled to receive reunification services under [Welfare and Institutions Cod e] section 361.5, ’ and custody of the child under
Welfare and Institutions Code section 361.2. [Citation.]” ( M.C. , supra , 195 Cal.App.4th

at p

. 212 ; Jerry P. , supra , 95 Cal.App.4th at p. 801.)8

Family Code section 7611 sets forth several rebuttable presumptions under which a man may qualify as a presumed father , only one of which is pertinent here. Family
Code section 7611 , subdivision (d) provides a person is presumed to be the natural parent of a child if the pe rson “ receives the child into his or her home and openly holds out the
child as his or her natural child. ” “ The statutory purpose [of Family Code section 7611] is to distinguish between those fathers who have entered into some familial relationship
with the mother and child and those who have not. [Citation.] ” ( In re Sabrina H. (1990) 217 Cal.App.3d 702, 708; In re T.R. (2005) 132 Cal.App.4th 1202, 1209 ( T.R. ) .) A man seeking presumed father status bears the initial burden of proving by a preponderance of the evidence that he satisfied the requirements of Family Code section 7611, subdivision (d). ( T.R. , supra , 132 C al.App.4th at p. 1210; Charisma R. v.
Kristina S. (2009) 175 Cal.App.4th 361, 368 ( Charisma R. ), disapproved on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7 .) He has the burden of establishing (1) that he physically brought the minor into his home , and (2) that he openly and publicly acknowledged paternity. ( In re Spencer W. (1996) 48 Cal.App.4th 1647,
1652 ( Spencer W. ).) Where the man is not living with the child ’ s mother, it is not necessary that the child live with the man on a full time basis; it is sufficient if the evidence shows regular visits and a consistent involvement. (See In re A .A. (2003) 114 Cal.App.4th 771, 784 (

A.A. ) .)
C

. Substantial E vidence S upport s Denial of Presumed Father Status
The evidence showed appellant openly held the minor out as his natural child ; and
the trial court did not find otherwise

. (See Fam. Code, § 7611, subd. (d).) The trial court, however, found that appellant did not receive the child into his home within th e meaning
of the presumed father statute. In arguing this finding is unsupported, a ppellant points to
favorable evidence in the record indicating that appellant took the mother and minor into his home when they were homeless, although the duration and fre quency of these
occasions was the subject o f conflicting evidence

. He also emphasizes that h is
commitment to the minor ’ s care and well

- being was demonstrated by evidence that he consistently visit ed with the minor when she was in her mother ’ s custody and suppl ied9

her with food and diapers. Appellant argues that the foregoing favorable facts establish
that he “ receive [ d ] ” the minor into his own home. ( Fam. Code, § 7611, subd. (d).)
If the requirement of receipt into one ’ s home could be satisfied by evide nce of a visit or brief stay by the child in a father ’ s residence, we would have no choice but to
reverse the trial court ’ s finding that appellant was not entitled to presumed father status. However, this requirement has been given more substantive meanin g by the courts. Under Family Code section 7611, “ the father ’ s rights flow from his relationship

. . . to the mother and/or child and not merely from his status as the biological father

. ” ( In re
Sarah C. (1992) 8 Cal.App.4th 964, 972, italics added; Spencer W. , supra , 48 Cal.App.4th at p p

. 1654

- 1655 [ “ presumed father status is earned based on a commitment toward developing a ‘ substantial familial relationship to the child ’ ” ]; A.A

. , supra , 114 Cal.App

. 4th at p

. 787 [presumed father finding reversed as to biological father who never
established himself as “ a true family member ” ].) To satisfy this standard, receipt into the home must be substantial enough to signify assumption of parental responsibility for the
child

. (See Charisma R.
, supra , 175 Cal.App.4th at p. 374 [ “ receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship, but it need not continue for any specific duration ” ]. )

“ In determining whether a man has ‘ recei v[ ed a] child into his home and openly h[eld] out the child ’ as his own [citation], courts have looked to such factors as whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is u nequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completi on of the requisite paperwork; and whether his care was merely incidental. [Citations.] ” ( T.R. , supra , 1 32 Cal.App.4th at p. 1211.) However, “ In re T.R

. does not require an alleged10

parent to show each and every one of these factors exists

. Instead
, it lists the types of
factors trial court s may consider

. ” ( Charisma R

. , supra , 175 Cal.App

. 4th at p

. 376 .) Viewing the juvenile court ’ s extensive and considered comments , t here is no question that in determining whether or not appellant was a presumed father, the court considered the appropriate factors

. In doing so, appellant ’ s credibility with the court was
severel y undermined, given the number of in

- court admissions that varied from appellant ’ s sworn declaration. The court pointed out that
, despite his sworn declaration to the contrary, the evidence demonstrated appellant was not present at the minor ’ s birth,

nor did the mother and minor reside with him after the minor ’ s birth. Also, appellant gave vastly different accounts of the frequency and duration of the times the minor and mother resided with him, creating uncertainty on this key point. For example
, appellant
claimed initially that he visited the minor every other day si nce her birth, with no exceptions, but the court pointed out “ that clearly wasn ’ t the testimony. ” Furthermore, a s the trial court emphasized, there was evidence undermining the inference that appellant ’ s sporadic periods of cohabitation with mother and th e minor reflected a commitment to assuming full parental responsibility for his child. A ccording to appellant, the minor and mother moved in with him dur in g the periods when she called
him and had no other place to go. The trial court legitimately saw th is as living together by necessity, as opposed to appellant ’ s “ proactive ” efforts to build a family unit. Most importantly, t here was no evidence that during the times he lived with the
minor appellant was involved in day

- to

- day parental

- type tasks or that his care was other
than incidental. The godmother testified that during these times, she was still called upon

to take the minor into her home

. The court in A.A

. , supra , 114 Cal.App.4th 771
, concluded that the biological father was not entitled to presumed father status, even though he had lived with the child for one to three months in someone else ’ s home

. ( Id. at p. 786.) The appellate court noted that the biological father had avoided “ the constant parental

- type tasks that come with having the child in his own home

— such as feeding
and cleaning up after the minor
, changing her clothing bathing her
, seeing to her naps ,11

putting her to bed
, taking her for outings
, playing games with her
, disciplining her
, and
otherwise focusing on the child

. ” ( I d. at pp. 786

- 787.) Appellant ’ s failure to provide any evidence on th is point supports the juvenile

court ’ s finding that appellant failed to “ ‘ demonstrate[ ] a full commitment to his paternal responsibilities

–– emotional, financial, and otherwise [

. ] ’ ” ( Jerry P. , supra , 95 Cal.App.4th at p p

. 801

- 802, fn. o mitted ; Spencer W. , supra , 48 Cal.App.4th at

p p

. 1654

- 1655 .) Consequently, we find t h e a f o r ementioned evidence supports the juvenile court ’ s finding that appellan t did not meet his burden of proof for establishing that he was entitled to presumed father status under Family Code section 7611, subdivision (d).
IV.
DISPOSITION
The order denying appellant presumed father status is affirmed.

_________________________ RUVOLO, P. J.

We concur:

_________________________ REARDON, J.

_________________________ RIVERA, J.