Filed 9/22/14 S.L. v. Superior Court CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

S.L. et al.,

Petitioners,

v.

SAN LUIS OBISPO COUN TY

SUPERIOR COURT,

Respondent;

SAN LUIS OBISPO COUNTY

DEPARTMENT OF SOCIAL SERVICES,

Real Party in Interest. 2d Civil No. B256801
(Super. Ct. No. JV42903)
(San Luis Obispo County)

S. L. ( Mother ) and J. S. ( Father ) file petitions for extraor dinary writs (Cal.

Rules of Court , rules 8.452, 8.456) to review orders of the juvenile court bypassing the ir

request for family reunification services with their child K. L. , a person coming under the

juvenile court law. (Welf. & Inst. Code, § § 300 , subd . (b)

, 361.5, subd. (b) .) 1 We

co nclude, among other things : 1) the trial court did not err by denying family

reunification services because Father did not establish a presumed father status, and 2) it

did not err by bypass ing family reunification service s for Mother because of her history

1 All statutory references are to the Welfare and Institutions Code unless otherwise stated.2

of drug abuse and resistance to treatment

. (§ 361.5, subd. (b) (13). ) The petitions are

denied.

FACTS

On January 7, 2014, the San Luis Obispo County Department of Social

Services (DSS) file d a juvenile dependency petit ion (§ 300 , subd. (b) ) alleging Mother

failed to protect K. L. , a two

- year

- old girl

, from abuse and neglect. On January 3

, Mother

was arrested for using and being under the infl uence of a controlled substance,

methamphetamine

, and " willful cruelty " to a c hild. The little girl was dirty and hungry

.

She was in a car outside a fast food restaurant and had a large bruise on her forehead

.
Mother was asleep in the car. When law enforcement arrived

, Mother " was fidgeting "

and " appeared confused. " DSS placed the child into protective custody because of

Mother ' s " chronic substance abuse problem. "

On January 8, 2014

, the trial court ruled that K. L. " is a person described by

Section [] 300 .

. . (b) [and] (g) " and that " detention of the minor [] is required. " I t

authorized visits by the child to see Mother at the county jail.

In it s revised findings and orders after dispositional hearing

, the trial court

found: 1) K. L.'s " out

- of

- home placement is necessary, " 2) the " current placement is

appropriate

, " 3) Fat her is the biological father of K. L. , and 4) contact and visitation

between Father and K. L. is " not in [the] minor ' s best interest. "

Father was convicted of robbery in 2011. He was released from s tate

prison on March 14, 2014. On March 27, he took a paternity test that proved he was

K. L. ' s biological father.

DSS recommended that Father not receive family reunification services

because: 1) he had " a violent criminal history, " 2) he " never had a relationship with

[ K. L. ]

, " and 3) K. L. 's " reunifica tion with him would not be in her best interest. " DSS

determined Father had not promptly taken the necessary steps to qualify as a " presumed

father

, " and consequently he was not entitled to reunification services.3 At the May 21, 2014

, contested hearing

, Melissa De Poorter , a DSS social

worker, testified Father had known for two years that he " could be the biological father, "

but he " never " established " a relationship with " the child.

Father testified he had not taken steps to establish paternal rights u ntil after

he was released from prison because

, when Mother was pregnant

, she told him he was

not K. L. ' s father and he believed her. Father said

, before entering prison

, Mother ' s

brother told him that Mother gave K. L. the s ame first name as his (Father' s) step

daughter. Father testified he regarded this statement to be a " joke " and a " vulgar "

remark. He felt he did not need to take steps to determine if he was the biological father

at that time. Responding to a question by the court , he said he though t he " might be the

father " when he was in prison

. He also felt " the odds were against it. " H e had a " short

term " relationship with Mother

. They had sexu al relations on two occasions. He said

predicting whether he was the father was " kind of a gamble " a nd " [he] lost. "

DSS recommended Mother be bypassed from receiving reunification

services because of her chronic drug abuse problem and her resistance to treatment

.

Mother testified that using " meth " was part of her " lifestyle " from 1999

until August 20 10. The next time she used me thamphetamine was in November 2013.

She was arrested for " being under the influence " w hen she was pregnant with K. L. Her

parental rights to another child were previously terminated beca use of her drug abuse

problem. Mother said she told Father that K. L. was not his child when she was pr egnant.

She said T. L., her " ex

- boyfriend

, " was the father. She said she " never saw or spoke to

[ Father ] again until the day he showed up in court " afte r he was released from prison.

De Poorter testified Mother had received various drug rehabilitation

treatment services. But after completing those programs

, " [Mother] has relapsed each

time. "

The trial court denied reunification services for Mother and Father finding

it would not be in the child ' s best interests. It rejected Father ' s claim that he achi eved a

presumed father status. It found the DSS assessment to bypass Mother from receiving4

reunification services because of her chronic drug abuse addiction w as proper. (§ 361.5,

subd. (b) (13).)

DISCUSSION

Presumed Father Status

Father contends the trial court erred in denying hi s request for family

reunification services. He claims the evidence does not support the court ' s finding that he

failed to show a presumed father status. W e disagree.

Father relies heavily on his testimony and Mother ' s testimony to challenge

the trial court ' s order. But the issue is not whether he claims some evidence supports his

position, it is only whether substantial evidence supports the findings. ( I n re Brandon T.

(2008) 164 Cal.App.4th 1400, 1408; In re Josue G. (2003) 106 Cal. A pp.4th 725, 732.)

We must draw all reasonable inferences in support of the court ' s orders. ( Josue G ., at

p. 732.) We do not weigh the evidence o r resolve evidentiary confl icts.

" A biological father is one whose paternity has been established, but who

does not qualify as a presumed father. " ( In re B.C. ( 2012) 205 Cal.App.4th 1306, 1311

,

fn. 3.) " Only a ' presumed ' father

. . . is entitled to reunification services. " ( In re Julia U.

(1998) 64 Cal.App.4th 532, 540.) A biological father may become a " presumed " father

by showing he promptly assumed parental responsibility for the child. " If an unwed,

biological father promptly comes forward and demonstrates a full commitmen t to his

parental responsibilities, his federal constitutional right to due process prohibits the

termination of his parental relationship absent a showing of his unfitness as a parent. "

( Id. at pp. 540

- 541.) " We consider his conduct before and after the child ' s birth,

including whether he publicly acknowledged paternity, paid pregnancy and birth

expenses commensurate with his ability to do so, and promptly took legal action to obtain

custody of the child. " ( In re Elijah V. (2005) 127 Cal.App.4th 576, 58 3.)

A n unwed biological father seeking presumed father status must take

parental responsibility within " a short time " after he knew or should have known of the

pregnancy. (

Adoption of Michael H. (1995) 10 Cal.4th 1043, 1060; In re Elijah V.

,

supra

, 127 Cal.App.4th at p. 583. ) If paternity is not established and he believes he5

might be the father

, he must take steps to resolve that issue and " seek to have his name

placed on [ the child ' s ] birth certificate. " ( In re J.H. (2011) 198 Cal.App.4th 635, 646.)

He must show he "' has promptly taken every available avenue to demonstrate that he is

willing and able to enter into the full est possible relationship with [his child] .

. . even if

he has not as yet actually been ab le to form that relationship. '" ( Adop tion of Kelsey S.

(1992) 1 Cal.4th 816, 838

- 839 , italics added .) He should promptly request a paternity

test " despite the uncertainty [ about whether ] he was the father. " ( Adoption of A.S. (2012)

212 Cal.App.4th 188, 212.) An indifferent or " laissez fair e attitude " about parental

obligations is inconsistent with presumed father status. ( Ibid

. ) A biological father has

the burden " to establish the factual predicate " to establish presumed father status. ( Id

. at

p. 209.)

Here the trial court found: 1) Father knew Mother was pregnant at a " time

consistent with " his sexual relationship with her, 2) but Father " did nothing to further

identify whether or not he had a biological relationship to " this child, 3) Father admitted

that while in prison he was awar e of " the possibility of his parentage, and he elected to do

nothing at that time, " and 4) Father did not make efforts to " elevate his status to more

than a mere biological father. "

At the May 21, 2014

, hearing, De Poorter testified that Father " was made

aware he could be the biological " fath er " approximately two years ago

. . . . " But Father

" never " established " a relationship with " the child.

F ather decided to take a paternity test only afte r he was released from

prison. B efore entering prison

, Fat her had the Mother ' s phone number. But during his

two years in prison

, he did not request to take a paternity test or to have his name placed

on the birth certificate. ( In re J.H.

, supra , 198 Cal.App.4th at p. 646.) He did not

publically acknowledge pat ernity. H e never called Mother to find out about the

pregnancy, those expenses, the child or his parental responsibilities.

Father notes that he testified he was justified in not making those inquiries

or taking action because Mother told him he was not t he father and he believed her. He

suggests the trial court was required to accept this testimony. But as trier of fact

, the6

court " could reject appellant ' s testimony either in whole or in part. " ( Bazaure v. Richman

(1959) 169 Cal.App.2d 218, 221.) It "' may reject part of the testimony of a witness,

though not directly contradicted, and combine the accepted portions with bits of

testimony or inferences from the testimony of other witnesses thus weaving a cloth of

truth out of selected available materia l. '" ( Ibid .) T he credibility of witnesses " is the

exclus iv e province of the trial judge. " ( In re E.L.B. (1985) 172 Cal. A pp.3d 780, 788.)

DSS claims : 1) evidence support s reasonable inferences that Father

believed he could be the biological father , bu t he elected not to promptly assume parental

responsibility , and 2) the trial court could find Father ' s testimony was impeached. We

agree. Father admitted he knew Mother was pregnant

. H er pregnancy fell within the

time line consistent with their sexual r elations

. The court could find this impeached the

credibility of Father ' s and Mother ' s testimony that while pregnant Mother had the ability

to know that Father was not K. L. ' s biological father. A DSS a ddendum report reflects

that before the paternity te sting results

, Mother told a DSS social worker that she did " not

currently know who [K.L ' s] father might be. " The court could reasonably infer s he could

not have known paternity without a DNA test

, and a ny reasonable presumed father would

know th is and pr omptly request such a test. But Father did not make such a request or

indicate any desire to take one until after he was released from prison.

Moreover, Father testified that while in prison he " thought [he] might be

the father " of the child. He sa id two years earlier, before he went to prison, Mother ' s

brother told him

, "'[ Mother ] named your daughter [ K

. ]

, so now you will never forget

your daughter

. '" ( Italics added .) Father admitted that after hearing this information he

made no effort to determ ine whether he was the biological father. He claimed he felt the

brother ' s remarks were a joke, but the trial court did not accept that part of his testimony.

Father testified Mother did not tell him about naming the child. But a DSS

report reflects th at h e told the DSS social worker that "[ Mother ] had previously advised

him that she gave her daughter the name of [ K

. ] because she knew [ Father ] would

remember her that way

. . . . This was because [ Father ] .

. . had a stepdaughter " with that

name. De Po orter testified that at a prior court hearing Father told De Poorter that7

Mother had made these statements

. The trial court could find De Poorter' s testimony was

credible, and that it impeached Father ' s testimony and showed that Father had notice of

his p aternity.

The trial court also found internal conflicts in Father ' s testimony

. Father

said he " totally " believed he was not the biological father. But during further questioning

he said that while he was in prison he b elieved he might be the father. T he court could

properly resolve th is conflict against him in making its findings

. ( In re E.L.B.

, supra , 172

Cal.App.3d at p. 788.) It could reasonably infer his statement about gambling odds

which he " lost " to be evidence of a " la i sse z faire attitude " t oward parental obligations

which showed the reason why he did not promptly take action

. ( Adoption of A.S.

, supra

,
212 Cal.App.4th at p. 212.)

De Poorter' s testi mony supports a finding that Father had kn own for two

years that he could be the father, but took no action. There is no evidence he had a ny

relationship with this child. The trial court could reasonably reject his claim that he took

all reasonably prompt steps to assume parental responsibility. Father has not shown

e rr or

.

Moreover, DSS conte nds that even if Father had established he was entitled

to a presumed father status, he was not entitled to family reunification services because of

his criminal history

. In its second addendum report

, it said if Father " were to be elevated

to presumed fa ther status

, " he could be subject to a bypass of reunification services under

section 361.5, subdivision (b)(12).

Section 361.5, subdivision (b) (1 2 ) provides , in relevant part, that family

reunification services " need not be provided " where " the parent o r guardian of the child

has bee n convicted of a violent felony. " In its addendum report No. 3 , DSS said Father

had been convicted o f robbery, assault with great bodily injury, burglary, " domestic

battery, " " child endangerment

, " and other crimes. It said he also was " extradited and

served a prison sentence for a Burglary he committed " in another state. The evidence

DSS presented regarding his criminal convictions is uncontradicted.8 " Once it is determined one of the situations outlined in subdivision (b)

applies, the general rule favoring reunification is replaced by a legislative assumption that

offering services would be an unwise use of governmental resources. " ( In re Baby

Boy H. (1998) 63 Cal.App.4th 470, 478.) Section 361.5, s ubdivision (c ) " prohibi ts the

court fr om ordering reunification .

. . ' unless the court finds .

. . that reunification is in th e

best interest of the child. '" ( In re Kobe A. (2007) 146 Cal.App.4th 1113, 1123.)

Here t he trial court found reunification services to the Father " will not

benefit the child

, " and any contact or visitation was " not in [the] minor ' s best interest. "

Th ose finding s are supported by the record. DSS said reunification services would not be

in the child ' s " best interest " because: 1) Father " does not ha ve any relationship with

[ K. L. ]

, " 2) " [Father] has been incarcerated for a violent felony for the previous two

years, " and 3) Father " has not shown a pattern of behavior consistent with an ability to

provide a physically a nd emotionally safe home for [ K. L. ]

. " In his testimony Father did

not state his current monthly income or disclose his personal financial resources t o be

able to support this child. He said he and three other adults share the rent for an

apartment. Father and another adult who lives i n that apartment have criminal records.

Father is on parole, the other adult is on probation. Father did not know what crime the

other man committed. Father said he has a " medical marijuana card

, " which he obtained

in 2008, before he went to prison for robbery. But he did not mention what current

medical condition h e ha s that authorize d the u se of that substance. DSS said he ha s a

history of arrests for posses sion of controlled substances. Father told DSS that his history

of using methamphetamine " ten ded to co ntribute to criminal activity. "

Father said he was motivated to care f or this child

. He testified

, " I ' m good

around my children. " But he has a 2007 conviction for child endangerment. A DSS

report indicated that in a prior domestic violence in cident the victim was the mother of

another one of his children. DSS said " [ i ] t was reported " that he had " grabbed [ her ] by

her wrist, and twisted her arm behind her head

. " He has a 2012 conviction for assault

with great bodily injury

. Father has not sh own why the trial court could not reasonably9

find he did not make a sufficient showing to challenge the DSS assessment that he could

not provide a safe environment for th is child. He has not shown err or

.

Bypassing Reunification Services for Mother

Mot her claims there is no evidence to support the trial court ' s finding that

reunification services should be bypassed because of a history of drug abuse and

resistance to treatment under section 361.5, subdivision (b ) (13). We disagree.

" Section 361.5, subd ivision (b)(13) provides that reunification services

need not be provided to a parent or guardian who ' has a history of extensive, abusive, and

chronic use of drugs or alcoh ol and has resisted prior court

- ordered treatment for this

problem during a three

- y ear period immediately prior to the filing of the petition that

brought that child to the court ' s attention. '" ( In re Brooke C. (2005) 127 Cal.App.4th 377,

382.) " Resistance to prior treatment for chronic use of drugs may be shown where the

parent has pa rticipated in a substance abuse treatment program but continues to abuse

illicit drugs. " ( Ibid. )

Mother testified she began " using meth " in 1999. She said she had lost

parental rights to another child beca use of her drug abuse problem. She continually used

drugs as part of her " lifestyle " until the birth of K. L. On August 18, 2010, she was

arrested for " being under the influence

. " S he was pregnant with K. L. at that time.

Mother claims her testimony shows that she maintained continuous

" sobriety " fo r three years after August 2010. But the credibility of that testimony was a

matter for the trial court. ( Bazaure v. Richman

, supra , 169 Cal.A pp.2d at p. 222 .)

Moreover, she used metha mphetamine again in November 2013. She claims this was

only a short relapse and should not have been considered resistance to treatment. But this

was not a single event. She admitted us ing this drug four times since November 2013.

She also testified she receiv ed " a great deal of education about how to deal with [her]

ad diction. " But she admitted that history of drug rehabilitation services " didn ' t seem to

help [her] avoid the use of methamphetamine " in November 2013.

DSS recommended against reunification services because of Mother ' s

longstanding inability to overcome her drug abuse problems. De Poorter testified Mother10

has a history of receiving drug treatment rehabilitation services. " [ S ] he ' s been able to

access services prior to this, but if you end the services, she has relapsed each time. "

Mother has not shown w hy the trial court could not reasonably find her chronic drug

addiction and resistance to treatment placed the child ' s safety at risk. She has not shown

err or

.
The petitions filed by Mother and Father are denied.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.11 Linda D. Hurst, Judge

Superior Court County of San Luis Obispo

______________________________

J. Barry Smith for Petitioner S.L.

Mary Ann Foster for Petitioner J.S.

No appearance for Respondent.

Rita L. Neal, County Counsel, Leslie H. Kraut, Deputy County Counsel, for

Real Party in Interest.