Filed 2/11/16 In re C.M. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

In re C.M., a Person Coming Under the                                B260784
Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK80972)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent.

         v.

TRAVIS H.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County. Amy
Pellman, Judge. Affirmed.


         Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant
and Appellant.


         No appearance for Respondent.
       Travis H. (father) appeals from the juvenile court’s order denying father’s motion
seeking to be granted presumed father status. Father argues that the trial court erred in
determining that father did not qualify as a presumed father under Family Code section
7611, subdivision (d). We find no error in the trial court’s ruling, therefore we affirm.
          COMBINED FACTUAL AND PROCEDURAL BACKGROUND
       On June 11, 2014, the juvenile court ordered C.M., who was then two months old,
detained from parental custody and placed in the care of respondent Los Angeles County
Department of Children and Family Services (DCFS) because both parents were
incarcerated and there was no relative available who could immediately take placement
of the child.1 The petition, filed on behalf of C.M. pursuant to Welfare & Institutions
Code section 300, alleged that both mother and father had histories of drug abuse, and
that the child had been placed in a detrimental and endangering situation when
hypodermic needles were left in the family vehicle in reach of the child.
       Father and Brittany M. (mother) were present in court at the next hearing on July
14, 2014.2 Father and mother were appointed counsel. The court asked father if he had
ever lived with the child, and if his name was on the birth certificate. Father answered
“no” to both questions. However, he stated that there was no question that he was the
child’s father.
       The court found that father was the child’s alleged natural father, and ordered that
he have supervised visits three times per week. The child was detained with the maternal
grandmother.
       The jurisdictional hearing was held on August 20, 2014. Mother appeared but
father did not. Mother pled no contest, and the petition was sustained.
       On September 26, 2014, father’s counsel filed a motion requesting that father be
found to be the child’s presumed father. On October 2, 2014, the court continued the



1      DCFS has not filed a brief in this appeal.

2      Mother is not a party to this appeal.

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disposition hearing so that mother could appear in custody. The court indicated that it
would rule on father’s motion at the continued hearing.
       The disposition hearing was held November 24, 2014. Mother and father were
present. Both parents signed a voluntary declaration of paternity, and their signatures
were witnessed by the court clerk. The court ordered father’s counsel to ensure that the
declaration was filed with the appropriate state agency.
       The court denied father’s request that he be declared a presumed father under
Family Code section 7611, subdivision (d). Under that subdivision, a person is presumed
to be the natural parent of a child if he “receives the child into his . . . home and openly
holds out the child as his . . . natural child.” The court rejected father’s argument that,
because he had received the child into a car and was temporarily living in that car, father
received the child into his home. The trial court explained, “living in a car [a] few days
or even living a few days here and there with a child does not rise to the level of
presumed as interpreted by the case law.” The trial court indicated that it was willing to
revisit the issue of presumed father status for the father in the future, stating “at this point,
I’m not able to grant presumed father status. I see that he has signed a voluntary
declaration of paternity, which is good and a great start.”3
       On December 5, 2014, father filed his notice of appeal.
                                        DISCUSSION
I. Applicable law and standard of review
       “In dependency proceedings, fathers are divided into four categories: de facto
fathers, alleged fathers, natural fathers and presumed fathers. A man, such as a step
father, who has assumed the role of parent, is a ‘de facto father.’ A man who may be the
father of the dependent child but has not been established to be the natural or presumed
father is an ‘alleged father.’ A man who has been established to be the biological father


3      The court has inquired of father’s counsel whether any subsequent proceedings
rendered the issue of father’s status as presumed father moot. Counsel has informed the
court that as of the time of this opinion, the juvenile court has not made any findings or
orders concerning father’s paternity subsequent to the subject orders.

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is a ‘natural father.’ A man who has held the child out as his own and received the child
into his home is a ‘presumed father.’ A ‘natural father’ can be, but is not necessarily, a
‘presumed father’ and a ‘presumed father’ can be, but is not necessarily, a ‘natural
father.’” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, fns. omitted.)
       Of these four categories, “[p]resumed father ranks the highest. Only a ‘statutorily
presumed father’ is entitled to reunification services under Welfare and Institutions Code
section 361.5, subdivision (a) and custody of his child under Welfare and Institutions
Code section 361.2.” (In re Jerry P., supra, 95 Cal.App.4th at p. 801, fn. omitted.)
       “[Family Code] section 7611 sets out a number of ways a father can obtain
‘presumed father’ status. He can marry or attempt to marry the child’s mother, he and the
mother can execute a declaration of paternity or he can ‘receive[] the child into his home
and openly hold[] out the child as his natural child.’” (In re Jerry P., supra, 95
Cal.App.4th at p. 802, fn. omitted.)
       An alleged father has the burden to establish, by a preponderance of the evidence,
the foundational facts supporting his entitlement to presumed father status, i.e. that he
received the child into his home and openly and publicly acknowledged paternity. (In re
Spencer W. (1996) 48 Cal.App.4th 1647, 1652-1653 (Spencer W.).) It was for the trier of
fact to determine whether the foundational facts were established by a preponderance of
the evidence. (Id. at p. 1653.)
       We review for substantial evidence the trial court’s rejection of father’s claim to
presumed father status under Family Code section 7611, subdivision (d). Under this
standard, we must determine whether the evidence would permit the trier of fact to
conclude that one of the foundational elements necessary to presumed father status was
not present. (Spencer W., supra, 48 Cal.App.4th at p. 1653.)
II. The evidence supports the trial court’s finding that father failed to carry his
burden of proving that he received the child into his home
       Interviews with mother and father revealed the following facts: while mother was
pregnant, mother and father went to Iowa to work for paternal grandmother. When they
realized that father was not allowed to leave California due to parole restrictions, they


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returned to California. Father and mother lived separately following their return to
California. C.M. was apparently born in California.
       After C.M. was born in March 2014, mother went to live with the maternal great-
grandparents. In May 2014, mother got into an argument with her sibling, who
threatened to call the police. Mother called father, letting him know that she needed to
leave the home. Father came to get mother, which resulted in a restraining order being
filed against him.
       At the time that mother called him, father was in a drug treatment program.
However, father left the program because he felt he needed to be supportive of mother.
Father stated that although they were both using drugs at the time, they were trying to get
into a program where mother could keep the child with her. They lived out of a car for a
few days, and went to various relatives’ homes. They spent a few nights in the driveway
of paternal grandfather’s home. Mother and father were unable to find permanent
housing.
       At the jurisdictional hearing on August 20, 2014, when the court inquired of
mother whether there was any point when father lived with mother and the child, mother
responded that the only time was the last couple of days before mother was detained,
when she and father lived together in mother’s vehicle. Mother testified that father never
lived with her in her residence, and never took the child into his own residence.
       Thus, the only evidence to support a finding that father “received the child into his
home” as required under Family Code section 7611, subdivision (d), was that father and
mother lived together with the child for a few days in mother’s vehicle. 4 The trial court
did not err in determining that this evidence was not sufficient to establish the
presumption set forth in that statute. Even if a vehicle can be considered a home, the
evidence here shows that father did not receive the child into his vehicle, but that mother
permitted father to reside in her vehicle. This situation does not mandate a finding that

4      While mother referred to the car as her vehicle, she also reported to DCFS that her
brother had reported the car stolen months prior to mother and father’s use of it as shelter.
Thus, it appears that the car belonged to either mother or mother’s brother.

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father received the child into his home. (Spencer W., supra, 48 Cal.App.4th at p. 1653
[foundational element of father receiving child into his home not met where mother
permitted father to reside in her home].) Instead, the trier of fact could justifiably
conclude that father’s residence with the child in mother’s car was “not demonstrative of
[father’s] commitment to the child but reflected that [father] acted out of personal
convenience.” (Ibid.)
       Father cites In re D.A. (2012) 204 Cal.App.4th 811, for the proposition that the
statutory requirement of receiving a child into a home is satisfied even when the child
visits in the father’s home. The relevant facts of D.A. were that mother “‘drop[ped]
[D.A.] off for overnights while she was out partying and pick[ed] him up the next
morning.’” (Id. at p. 827.) There was no question in that case that the presumed father
had a residence at the time. The case is factually distinguishable from the matter before
us, where father did not have a home but was living a transient lifestyle, staying in
mother’s car or with various relatives, and never took the child into his own home or
vehicle.
       In sum, we find no error in the trial court’s conclusion that father did not meet his
burden of showing that he received the child into his home under Family Code section
7611, subdivision (d). 5
III. The record does not reflect a blanket finding that a car is not a home
       Father argues that the trial court’s decision was based on a legal finding that “A
car is not a home.” Father devotes a large portion of his brief to a discussion of various
Penal Code statutes and Supreme Court authority which recognize that a car can be
considered a home or residence. We find that we need not address the legal question of
whether a car can be considered a home under Family Code section 7611, subdivision (d)
for two reasons: first, the court did not base its decision on a blanket finding that a car is

5      Family Code section 7611, subdivision (d) mandates that the parent prove two
foundational facts before the presumption will apply: first, the parent must receive the
child into his or her home; and second, the parent must openly hold out the child as his or
her natural child. Because father failed to provide sufficient evidence of the first
foundational element to meet this presumption, we need not discuss the second element.

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not a home under that statute. Second, as set forth above, mother testified that the vehicle
belonged to her, not father; thus father cannot be said to have taken the child into his
vehicle.
       First, we review the trial court’s rationale for denying father presumed father
status under Family Code section 7611, subdivision (d). As set forth above, the trial
court focused on the facts of the case. The court stated “living in a car [a] few days or
even living a few days here and there with a child does not rise to the level of presumed
as interpreted by the case law.” Thus, the court focused on the transient nature of father’s
lifestyle at the time, not strictly the fact that he was living in a car rather than a home.
       Father contends that the trial court stated unilaterally that “[a] car is not a home.”
While the trial court did make this statement, father has taken it out of context. The
statement was not made as a rationale for denying father presumed father status. Instead,
the court was participating in an exchange with counsel, and corrected counsel’s
misstatement. Father’s counsel stated: “And just going back to the issue of presumed
father status, I understand that a house is not technically a home.” The court corrected
counsel’s misstatement, stating: “A car is not a home.” Father’s counsel then continued:
“I mean, a car is not necessarily a home.” As can be seen when viewing the text in its
entirety, the court was merely correcting counsel and not making a blanket statement of
the law.
       As set forth above, the court’s rationale for denying presumed father status under
Family Code section 7611, subdivision (d) was based on the fact that father never
received the child into his home. Father was living a transient lifestyle and was moving
between relatives’ residences and mother’s car. Under the circumstances, we find no
error in the trial court’s finding that father did not receive the child into his home and
thus did not qualify as a presumed parent under Family Code section 7611, subdivision
(d).
       Furthermore, mother testified that the car in which they temporarily stayed was
her car. Father points to no evidence that it was his car. Even if it could be said that the
car was father’s residence, father was there at the sufferance of mother. As set forth in


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Spencer W., the trial court could justifiably conclude that this was a convenient
arrangement for father rather than a demonstration of father’s commitment to the child.
                                     DISPOSITION
       The order is affirmed.6
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 ____________________________, J.
                                                 CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




6      As noted above, the record shows that mother and father signed a voluntary
declaration of paternity, and the trial court indicated that it was inclined to grant
presumed father status to father once the declaration was filed with the proper state
agency. This opinion is limited to the question of whether the trial court erred in denying
father presumed father status under Family Code section 7611, subdivision (d), at the
time of the ruling in November 2014. We render no opinion on any subsequent rulings
regarding father’s status. In addition, the record shows that father was granted
reunification services and visits with C.M., thus the juvenile court treated father as if he
were a presumed parent. Under the circumstances, if father can qualify for presumed
father status under any of the other ways provided for under the law, counsel should bring
this matter to the juvenile court’s attention.

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