Filed 8/30/13 In re C.P. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re C.P., a Person Coming Under the
Juvenile Court Law.
                                                                 D063665
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. J515555C)
         Plaintiff and Respondent,

         v.

CHARLES P.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Carol

Isackson, Judge. Affirmed.



         Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
          Charles P. appeals following the dispositional hearing in the juvenile dependency

case of his nine-and-one-half-year-old daughter, C.P. Charles contends the court erred by

denying his request for presumed father status (Fam. Code, § 7611, subd. (d)).1 We

affirm.

                                       BACKGROUND

          This is C.P.'s third dependency case. The first case spanned more than two and

one-half years when she was one to three and one-half years old. The second case lasted

for two months when she was six and one-half years old. When the instant case began,

C.P. was nine years old. She told a social worker, "I've been through enough. I want this

to stop."

          All three cases were based on domestic violence between C.P.'s mother, Sabrina

B., and Sabrina's two successive male partners, her husband and a boyfriend.2 During

the three cases, C.P. was in seven placements, in addition to Sabrina's home, for a total of

approximately three years. Charles was incarcerated when C.P. was born and has been in

custody for a total of six years since then. Between the second and third cases, Charles

was involved in domestic violence; he threw his girlfriend to the floor and threatened to

beat her with a baseball bat. Charles denied the violence and minimized his criminal

record.




1         All further statutory references are to the Family Code.

2     The first case also involved an unsanitary and unsafe home and neglect by
Sabrina.
                                                2
        Charles was represented by counsel throughout the first dependency case and was

incarcerated for most of the time. The juvenile court found that he was C.P.'s biological

father and entered a paternity judgment. Charles never requested presumed father status,

and the court found that Sabrina's husband was C.P.'s presumed father. The case ended

with an order granting Sabrina sole custody of C.P. The court clerk mailed a copy of the

order to Charles, who was still incarcerated.

        Charles's whereabouts were unknown during the second case. The case was

dismissed when Sabrina agreed to voluntary services.

        When the San Diego County Health and Human Services Agency (the Agency)

filed the third dependency case in December 2012, Charles's whereabouts were unknown.

In January 2013, the Agency found him in San Diego. In February, the court made a true

finding on the petition and Charles requested presumed father status. In March, the court

denied the request and ordered C.P. removed from Sabrina's custody and placed in foster

care.

                                       DISCUSSION

        "California law provides that a man is presumed to be the father of a child if he

'receives the child into his home and openly holds out the child as his natural child.' " (In

re Spencer W. (1996) 48 Cal.App.4th 1647, 1652, quoting § 7611, subd. (d).) Charles

had the burden of establishing presumed father status by a preponderance of the evidence.

(In re Spencer W., at pp. 1652-1653.) On appeal we apply the substantial evidence test.

"[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

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evidence but instead examine the whole record to determine whether a reasonable trier of

fact could have found for the respondent." (Id. at p. 1650.)

       " 'Presumed fatherhood, for purposes of dependency proceedings, denotes one

who "promptly comes forward and demonstrates a full commitment to his parental

responsibilities—emotional, financial, and otherwise[.]" ' [Citation.] A presumed

'father's rights flow from his relationship (or attempted relationship) to the mother and/or

child and not merely from his status as the biological father.' [Citation.] The presumed

father's commitment to the child is a key consideration." (In re T.R. (2005) 132

Cal.App.4th 1202, 1209-1210.) "In determining whether a man has 'receiv[ed a] child

into his home and openly h[eld] out the child' as his own (§ 7611, subd. (d)), 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 unequivocal 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 completion of the requisite paperwork; and whether his care was merely

incidental." (Id. at p. 1211.)

       The court here characterized some of Charles's testimony "evasive" and not

"credible" and questioned his veracity. The court found Sabrina's stipulated testimony



                                             4
more specific and therefore more credible. We accept these credibility evaluations. (In

re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

       In his paternity questionnaire in the first dependency, Charles declared that he had

stated to "mother, family" that he was C.P.'s father. In the third dependency, he expanded

the list to include "friends and family and members of the community." Charles never

sought to place his name on C.P.'s birth certificate, never offered to sign a declaration of

paternity and never requested public assistance for C.P., despite Sabrina's suggestion.

Until the advent of this case, Charles took no legal action to obtain custody of C.P.

       According to Sabrina, Charles lived with her and C.P. for about one week during

the year C.P. was born.3 Charles visited C.P. once just before her third birthday, then did

not see her again until after she turned six. From the time C.P. was six years old until just

before she turned seven, Charles saw her about one to two times a week, during the day,

and around that time they had an undisclosed number of overnight visits in Sabrina's

home, with Sabrina present. Charles participated in C.P.'s seventh, eighth and ninth

birthday parties and planned the latter party. In the months before the filing of the third

dependency petition, shortly before C.P.'s ninth birthday, there were approximately eight




3       Charles testified he lived with C.P. and Sabrina for about five months, and, during
that time, Sabrina paid the rent and he paid other bills. He further testified that while
Sabrina was pregnant and he was out of custody, he obtained an apartment for her, but he
was taken into custody before he could move in. He also testified, however, that he was
already in custody when he learned Sabrina was pregnant.
                                              5
nonconsecutive overnight visits, at Sabrina's request, because she was between homes.4

Charles had no further contact with C.P. until nearly two months after the petition was

filed.

         According to Sabrina, Charles was never involved in C.P.'s life and never

provided any support.5 Charles claimed he helped support C.P. by furnishing disposable

diapers, milk and school supplies and, when he lived with her, by "taking care of her,

watching her." Even were we to credit this claim and Charles's other testimony,

substantial evidence supports the conclusion he cared for C.P. only incidentally. For

most of her life, he was incarcerated; at other times, his whereabouts were unknown.

         Events shortly before the dispositional hearing in the instant case further

demonstrated Charles's lack of "an abiding commitment to [C.P.] and [her] well-

being . . . ." (E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1085.) At a supervised visit, he

asked her if she would like to move to Arizona with him and told her the foster parents

were the only reason she was doing well in school. When C.P. cried and explained her

disinclination to leave San Diego, Charles accused her of stealing, lying and cheating.

When C.P. refused to attend a subsequent visit, Charles told the social worker he would

give C.P. another "whoopin" if she continued to play games. He admitted that on two



4      The plan was for C.P. to stay with Charles longer, but she was very unhappy with
him and, at her request, Sabrina picked her up early. According to Charles, C.P. lived
with him for a month.

5     Sabrina acknowledged that on one occasion in 2012, Charles's girlfriend gave C.P.
some clothes. By the time this case began, Charles had a part-time job and a two-year
degree from a technical college. Before that time, he was unemployed.
                                               6
previous occasions, he had given her "a whoopin," which he defined as "[five] swats with

a belt."

       Substantial evidence supports the finding Charles was not a presumed father.

                                    DISPOSITION

       The judgment is affirmed.



                                                                    BENKE, Acting P. J.

WE CONCUR:



HUFFMAN, J.



MCINTYRE, J.




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