Filed 9/30/13 Eduardo L. v. Superior Court CA1/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


EDUARDO L.,
         Petitioner,
v.                                                                   A139225
                                                                     (Sonoma County
THE SUPERIOR COURT OF SONOMA                                          Super. Ct. No. 4127-DEP)
COUNTY,
         Respondent;

SONOMA COUNTY HUMAN
SERVICES DEPARTMENT,

        Real Party in Interest.




         Eduardo L. challenges the dependency court‘s jurisdiction and disposition orders,
and its order setting a selection and implementation hearing pursuant to Welfare and
Institutions Code1 section 366.26. Eduardo contends no substantial evidence supports the
court‘s determinations that (1) minor I.F. (minor) comes within section 300, and
(2) Eduardo is a mere biological father to minor not entitled to reunification services. He



         1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
seeks a writ compelling the dependency court to vacate its order bypassing reunification
services and setting a hearing under section 366.26. We deny the writ.
                                   I. BACKGROUND
A. Detention and Petition
       On February 11, 2013, when minor was approximately six weeks old, the Sonoma
County Human Services Department (Department) filed a petition under section 300,
subdivisions (b) and (g) requesting formal detention of minor, following her mother‘s
(Mother) arrest for violating parole and felony possession of methamphetamines. The
petition listed four possible parents: Mother, alleged father, Shawn F., alleged father,
Eduardo L. (petitioner herein), and legal father, Craig B., who was married to Mother.
The petition alleged in separate counts that Mother had a substance abuse problem which
placed minor at substantial risk of harm in her care; alleged father Eduardo L. had a
substance abuse problem and a history of domestic violence, both of which placed minor
at substantial risk of harm in his care, and that each of the four named parents were
unavailable to care for minor.2
       The petition alleged that Mother was arrested on or about February 7, 2013, and
that Mother had used methamphetamines while pregnant with minor. It further alleged
Eduardo was arrested for violation of parole and possession of a controlled substance on
February 7, 2013, for possession of marijuana on November 16, 2004, and for
transportation, distribution and importation of marijuana on May 20, 2011. A separate
count alleged Eduardo had a history of domestic violence, including two arrests in 2004,
which placed minor at substantial risk of harm in his care.
       A prima facie memorandum filed by the Department attached a summary of the
social worker‘s February 9, 2013 in-custody interview of Mother. She stated she moved
to Santa Rosa with the biological father, Eduardo L., because she was homeless and
living in shelters in Alameda County and Eduardo had picked her up two weeks earlier

       2
       The petition alleged Mother and Eduardo were incarcerated at the Sonoma
County Main Adult Detention Facility and the whereabouts of alleged father Shawn and
―presumed‖ father Craig were unknown.


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and offered her his home. Shawn was with Mother during the last four to five months of
her pregnancy and he agreed to be named as the father on minor‘s birth certificate. She
did not know Shawn‘s whereabouts but believed he was incarcerated.3 Mother stated she
was still married to Craig, and had last heard he was in prison. Mother stated
methamphetamine was her drug of choice, and she had last used it at the start of her
pregnancy before she knew she was pregnant. Mother had two other children who were
under the legal guardianship of her mother. Mother admitted to an extensive criminal
history including substance abuse. Mother explained she was arrested because of drugs
found in the home she was sharing with Eduardo. According to Mother, the drugs found
at in the home belonged to Eduardo‘s mother.
         The social worker also interviewed Eduardo L. He stated he was not sure if he
was minor‘s father and wanted a DNA test. He stated he had taken Mother to live with
him over a month earlier because he did not want minor to live in a homeless shelter.4
He stated the drugs found in the home belonged to Mother. Eduardo said Mother had ―a
huge substance abuse issue‖ but denied any substance abuse on his part. He said he was
hardly home but made sure Mother had food to eat and a roof over her head. He was
interested in visits with minor even if he was not the biological father.
         According to the police report of Mother‘s arrest, police were dispatched to an
address in Santa Rosa to check on the welfare of Mother and her female infant. Mother,
Eduardo‘s mother, and the infant were home, and the infant did not appear to be in
distress. Mother initially informed police ―Eddy‖ didn‘t actually live at the address, and
the townhome belonged to Eduardo‘s mother. Eduardo was not present, but the police
were able to reach him on the telephone and he said he was in Marin. Apparent
methamphetamine was found in a parole search of Mother‘s living space in the residence.



         3
       The social worker learned Shawn had been released on February 1, 2013, but his
whereabouts were unknown.
         4
             Mother and Eduardo‘s mother both stated Mother had been staying there for two
weeks.


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Following discovery of the drug, Mother told police Eddy shared the room with her,
contradicting her earlier statement that he did not live there.
       At the conclusion of the detention hearing held February 13, 2013, the dependency
court ordered minor detained pursuant to section 319, ordered Eduardo L. to submit to
paternity testing, and set the matter for a jurisdiction hearing. On March 7, 2013,
Eduardo filed a ―Statement Regarding Parentage‖ with the dependency court. Eduardo
indicated in his statement that if the DNA test results proved he was indeed the biological
father, he would ―accept full responsibility.‖ He listed Mother as the only person he had
told that the child was his. He stated he was willing to attend all classes or services
needed to get custody of minor, and willing to provide for minor if needed due to
Mother‘s lifestyle.
B. Jurisdiction Report
       The Department filed a jurisdiction report on March 11, 2013, recommending the
court find the petition true. The report indicated Craig B. was the presumed father and
was incarcerated at the Sierra Conservation Center with an expected release date of
July 2015. Despite a diligent search, the Department was unable to make contact with
alleged father Shawn F. Both Mother and Eduardo believed Eduardo was the biological
father of minor.
       The report detailed Eduardo‘s lengthy criminal history, which included
convictions for child cruelty involving possible injury or death, battery, battery against a
police officer, battery against a custodial officer, evading a police officer, and stalking.
Eduardo‘s criminal history also included two arrests in 2004 for domestic violence, as
well as arrests for willful cruelty to a child, assault with a deadly weapon (two arrests),
threatening crime with intent to terrorize, possession of a controlled substance, and
transportation and importation of marijuana. Eduardo denied having a substance abuse
problem. He indicated he ―might have been arrested‖ for domestic violence but claimed
the allegations were false and he was never charged.




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       Eduardo was on parole at the time with a discharge date of July 10, 2013. In
March 2013, Eduardo was released to Immigration Customs Enforcement and was
awaiting deportation in a holding facility.
       The jurisdiction hearing was continued to April 17, 2013, so that Craig could be
transported from prison.
C. Disposition Report
       On April 16, 2013, the Department filed its disposition report recommending
family reunification services not be provided to the alleged fathers Eduardo and Shawn
and recommending reunification services not be provided to presumed father Craig as he
was incarcerated with a release date of July 2015. The Department recommended Mother
be bypassed for reunification services pursuant to section 361.5, subdivision (b)(13) and a
hearing set pursuant to section 366.26.
       The disposition report contained the following information from Eduardo: He was
involved with Mother for a short time. He was aware she was pregnant and intended to
be involved in his child‘s life. When asked by the social worker what efforts he made to
be involved throughout Mother‘s pregnancy or during the birth of the child, Eduardo
merely stated that he expected Mother would be in touch with him. He had a friend who
gave him updates regarding Mother. Eduardo said Mother ―ran off‖ and he did not know
how to reach her. A few weeks after minor was born, Mother contacted Eduardo and
informed him she and minor were homeless and had nowhere to go. Eduardo made
arrangements for Mother and minor to come live with him at his mother‘s home.
Eduardo ―asked [Mother] to take a test so he would know that she [minor] was his child.‖
       Eduardo stated he was involved in feeding, changing, and watching minor while
she was in his home, and it was his intention to change minor‘s first and last name as he
would like minor to have his name. At one point he said he ―would not take a child that
was not his blood,‖ but later stated he felt attached to minor and would want to raise her
in his home as his daughter even if he was not minor‘s biological father.
       On February 21, 2013, Eduardo informed the social worker that he wanted to take
care of his child and was fit for this task. Eduardo stated he ―knew the woman was


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pregnant with a child, and wanted . . . to get correct.‖ Eduardo stated he would volunteer
for weekly drug testing and said he had friends and family who could assist him with
caring for minor. The Department had provided weekly supervised visitation for
Eduardo but, after careful evaluation, did not feel it was in the best interest of minor to
continue visitation until paternity was established.
       On April 17, 2013, Mother requested a settlement conference.
       On May 21, 2013, Eduardo filed a ―Petition to Establish Parental Relationship.‖
D. Addendum Report
       The Department filed an addendum report on May 29, 2013. It had received
genetic test results confirming Eduardo L. was the biological father of minor. The
Department was requesting Eduardo be found a mere biological father not eligible for
reunification services. It also recommended finding Shawn F. was not a father and that
Craig B. not be offered services pursuant to section 361.5, subdivision (e)(1) due to his
incarceration and lack of relationship with minor.
       On May 29, 2013, Mother requested a contested jurisdiction/disposition hearing,
which was set for June 24, 2013. The court raised Eduardo L. to ―biofather‖ status and
found Shawn F. ―not a Father.‖
E. Contested Jurisdiction/Disposition Hearing
       At the contested hearing on June 24, 2013, Mother submitted on the disposition
report and recommendation. Eduardo L. was in custody in Alameda County and was
represented by counsel. Through counsel, Eduardo requested presumed father status.
Counsel asked to reserve the right to argue jurisdictional issues as to Eduardo.
       County counsel pointed out Eduardo L. was not present to provide additional
evidence, and the evidence before the court—the prima facie memo and documents, the
jurisdiction report, the disposition report, and the addendum—did not include any
indication Eduardo had held out minor as his natural child. Eduardo did not provide aid
during the pregnancy even though he was aware of it. Counsel further argued against
Eduardo‘s petition to establish a parental relationship because the request was not
prompt, as Eduardo waited almost six months after minor‘s birth, and then, took action


                                              6
only after court-ordered DNA testing confirmed his paternity. Counsel for minor
supported the Department‘s recommendation that Eduardo be deemed a mere biological
father, and pointed out that it was another man, not Eduardo, who had been with mother
during pregnancy and delivery.
       Eduardo‘s counsel first addressed the jurisdictional allegations against his client.
Counsel argued the section 300, subdivision (g) allegation did not address Eduardo‘s
inability to make arrangements for the care of minor, pointing out he had previously been
able to enlist his mother‘s assistance in her care. As to the section 300, subdivision (b)
allegations, counsel asserted there was no nexus between Eduardo‘s drug and domestic
violence record and any current risk to minor.
       Eduardo‘s counsel further argued Eduardo had taken minor into his home when
Mother requested his help, and held minor out as his own child during that time, although
it was ―brief.‖ He maintained a balancing of presumptions favored Eduardo over Craig,
as he had at least stepped forward. Eduardo also argued that even if he were not a
presumed father, he should be considered the functional equivalent of a presumed father
based upon Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) because he stepped
forward to assume a parental commitment. County counsel disputed whether there was
any evidence Eduardo held the child out as his own during the two weeks he let Mother
stay in his mother‘s house.
       The dependency court found it was not a matter of competing presumptions as
Eduardo was not elevated to presumed status. The court ruled Eduardo did not rise to the
level of presumed father and found him a mere biological father based upon the evidence
that his actions were ―insufficient, inadequate as a matter of law to elevate his status.‖
The court stated: ―[J]ust based on the facts what occurred from the date of conception to
the date of the filing of the petition, there is inadequate effort, inadequate evidence to
support an elevation to presumed father. [¶] Accordingly, with that, the Court will find
that he is a mere biological father.‖
       The dependency court adopted the findings and orders recommended by the
Department in its jurisdiction and disposition reports, and set a hearing pursuant to


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section 366.26. On July 5, 2013, Eduardo filed a timely notice of intent to file a writ
petition. The present petition for extraordinary writ and request for a stay was filed on
August 12, 2003.
                                      II. DISCUSSION
        Eduardo L. contends (1) no substantial evidence supports the dependency court‘s
finding of jurisdiction; (2) he qualifies as a presumed father under Family Code
section 7611, subdivision (d) or, in the alternative, he should be determined to be the
equivalent of presumed father because he stepped forward to assume full parental
responsibility.
A. Jurisdiction
        Eduardo contends insufficient evidence was presented to the court that minor was
at risk of serious physical or emotional harm as a result of his substance abuse or
domestic violence, or that he could not provide for her care despite his incarceration.
        The substantial evidence test is the appropriate standard of review for
jurisdictional findings. ―The term ‗substantial evidence‘ means such relevant evidence as
a reasonable mind would accept as adequate to support a conclusion; it is evidence which
is reasonable in nature, credible, and of solid value.‖ (In re J.K. (2009) 174 Cal.App.4th
1426, 1433.) ―In making this determination, all conflicts are to be resolved in favor of
the prevailing party, and issues of fact and credibility are questions for the trier of fact.
[Citation.] In dependency proceedings, a trial court‘s determination will not be disturbed
unless it exceeds the bounds of reason.‖ (In re Ricardo L. (2003) 109 Cal.App.4th 552,
564.)
        ―The basic question under section 300 is whether circumstances at the time of the
hearing subject the minor to the defined risk of harm.‖ (In re Nicholas B. (2001)
88 Cal.App.4th 1126, 1134.) Minor was removed from a home where methamphetamine
was discovered in a room Mother stated she shared with Eduardo. Eduardo was arrested
for violating his parole and possession of a controlled substance based on that incident.
Eduardo had previously been arrested in 2011 for simple possession of marijuana,
possession of marijuana for sale, and transportation, distribution, or importation of


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marijuana, and in 2004 for possession of marijuana. Regarding the 2011 arrest, Eduardo
admitted he ―got caught with a large amount of marijuana‖ (about 2.5 pounds) and his
medical marijuana card had expired. He also had convictions for child cruelty involving
possible injury or death, battery, battery against police officers, and stalking, as well
other arrests for violent conduct. In total, he had been arrested on 20 different charges
involving drugs, violence, or threats.
       In our view there was sufficient evidence in the record of Eduardo‘s involvement
with drugs and history of violent behaviors both within and outside of domestic settings
to support the dependency court‘s jurisdictional findings as to him under section 300,
subdivision (b). His lengthy series of arrests and convictions for violent conduct over an
extended period established a pattern that was likely to recur. His conviction for child
cruelty involving possible death or injury is especially troublesome. The absence of
recent incidents of domestic violence does not neutralize Eduardo‘s history. There was
no evidence he had been in a domestic relationship since the incidents in 2004. His
relationship with Mother was very brief. Even during the two weeks Mother and minor
lived at his mother‘s home it was not clear how much time, if any, he spent with them. In
view of his entire history, the absence of recent domestic violence incidents does not
eliminate the risk of harm to minor.
       We need not reach the allegation under section 300, subdivision (g) that Eduardo
was in custody and unable to support or provide for the minor. We note, however,
Eduardo‘s assertion he had proved he could make arrangements for minor‘s care at the
time of the jurisdiction hearing because his mother, was already assisting with minor‘s
care at the time of her removal. If anything, that claim tends to support the Department‘s
allegation that Eduardo could not provide for minor‘s care. Methamphetamines had been
found in Eduardo‘s mother‘s home, and it could not be ruled out the drugs belonged to
her. At a minimum, Eduardo‘s mother had allowed Mother to continue using
methamphetamine in the home at a time when Mother was primarily responsible for the
care and protection of a one-month-old infant. By Eduardo‘s mother‘s own admission
she had allowed Mother to bring strangers into the home who made her uncomfortable.


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Since the only provision for minor‘s care Eduardo offered at the time of the jurisdiction
hearing was patently inadequate to ensure her safety from harm, the allegation of
subdivision (g) was properly sustained.
       Moreover, all parties agreed Mother had a serious drug abuse problem. The
section 300, subdivision (b) and (g) allegations against her were undisputed. Those
findings were sufficient in themselves to support the dependency court‘s jurisdiction over
minor without regard to the findings concerning Eduardo. (In re I.A. (2011)
201 Cal.App.4th 1484, 1491–1492.) A jurisdictional finding against one parent is good
against both. (Id. at p. 1492; see also In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
We find the dependency court was correct in finding minor came within its jurisdiction
under section 300.
B. Parental Status
       Eduardo contends he qualifies as a ―presumed father‖ under Family Code
section 7611, subdivision (d) because he ―receive[d] [minor] into his home and openly
[held] out the child as his natural child.‖ Only a ―presumed father‖ and not a mere
―biological‖ father is a ―parent‖ entitled to reunification services under section 361.5,
subdivision (a). (In re Zacharia D. (1993) 6 Cal.4th 435, 448–449, 451.) He states he
qualifies as a presumed father because he brought minor into his home and provided for
her, and he filed documents with the court requesting the relationship be formalized.
       We agree with the dependency court that Eduardo failed to show he is a presumed
father. He did not receive minor into his home and openly hold her out as his natural
child. He allowed minor to live with his mother for a couple of weeks, and may not even
have lived there himself. He admitted in any event that he was ―hardly home‖ and
referred to the townhome as ―his mother‘s home.‖ (See In re Spencer W. (1996)
48 Cal.App.4th 1647, 1653 (Spencer W.) [appellant did not take minor child into his
home when evidence showed that mother permitted him to reside in her home].)
       There is also no evidence Eduardo held minor out as his child. He initially
questioned paternity and indicated to the social worker he ―would not take a child that
was not his blood.‖ While he was aware of Mother‘s pregnancy he took no steps to assist


                                             10
Mother or assert paternity until this proceeding was filed. He did not petition to establish
a parental relationship to minor until more than three months after the proceeding was
initiated. By his own admission, Eduardo told no one other than Mother that the child
was his before this proceeding began.
       It was Eduardo‘s burden to prove the foundational facts giving rise to the
presumed father status. (Spencer W., supra, 48 Cal.App.4th at pp. 1652–1653.) The
question for this court is whether substantial evidence supported the trial court‘s
determination that he did not. (Id. at p. 1654.) The preceding evidence is sufficient to
uphold the trial court‘s determination.
       Eduardo asserts he is nonetheless entitled to receive services under Kelsey S.
which held: ―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.‖ (Kelsey S., supra, 1 Cal.4th at
p. 849.) Under Kelsey S., the court considers the father‘s conduct before and after the
child‘s birth: ―Once the father knows or reasonably should know of the pregnancy, he
must promptly attempt to assume his parental responsibilities as fully as the mother will
allow and his circumstances permit. In particular, the father must demonstrate ‗a
willingness himself to assume full custody of the child—not merely to block adoption by
others.‘ [Citation.] 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., fn. omitted.)
       None of these factors weigh in favor of Eduardo. He knew of Mother‘s pregnancy
and of Mother‘s serious drug problems, but took no steps to assume any parental
responsibility—financial or otherwise—until Mother called him and asked for help
because she was homeless. At that point, Eduardo allowed Mother and minor to stay in
his mother‘s home, and provided food and shelter, but he was ―hardly home.‖ He did not
claim parenthood or offer any commitment to be a parent until after the DNA test results
showed he was the biological father. When asked by the social worker what efforts he


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made to be involved during Mother‘s pregnancy or during the birth of the child, Eduardo
merely stated that he expected Mother would be in touch with him. The trial court‘s
determination Eduardo did not promptly come forward or demonstrate a full commitment
to parental responsibilities is supported by substantial evidence.
                                   III. DISPOSITION
       Eduardo L.‘s petition for a writ compelling the dependency court to vacate its
order bypassing reunification services and setting a hearing under section 366.26 is
denied. Due to the imminence of the section 366.26 hearing, and in accordance with
California Rules of Court, rule 8.490(b)(3), this opinion shall be deemed final as to this
court upon its filing.




                                                  _________________________
                                                  Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




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