Department of Social Services v. Gregory P.

Opinion

ROUSE, Acting P. J. Defendant, Gregory P., appeals from an order of the juvenile court declaring Olivia H., who was then five and one-half months old, a ward of the juvenile court. Defendant’s sole contention on appeal is that the juvenile court erred in denying him presumptive parental status under Civil Code section 7004.

On September 18, 1985, five days after Olivia was bom, the San Francisco Department of Social Services filed, in the juvenile court, a petition which contained the following allegations relevant to the issues on this appeal: Count I - Olivia’s mother had a drug abuse problem which required treatment and rendered her unable to care for her child at that time; count II - the child was bom with a positive “tox screen” for amphetamines and methamphetamines; and count V - the mother of the child had failed to obtain prenatal care. The petition requested that Olivia be declared a dependent child of the court pursuant to Welfare and Institutions Code section 300, subdivision (a), which provides, in pertinent part, that such action may be taken with regard to a minor “Who is in need of proper and effective parental care or control and . . . has no parent or guardian willing to [327]exercise or capable of exercising care or control, or has no parent, guardian or custodian actually exercising care or control.”

Defendant became involved in the action at an early stage in the proceedings, seeking custody of Olivia on the ground that he was her presumptive parent. Initially his claim was based upon the assertion that he was Olivia’s biological father and that he has been present at the hospital on the date of Olivia’s birth and consented to the mother’s placing his name on Olivia’s birth certificate as her father. Also, he willingly offered to accept the child into his home, which he shared with a male roommate. It was clear from the evidence, however, that defendant was not living with Olivia’s mother during her pregnancy nor had they ever lived together or held themselves out to be man and wife.

At the time of her birth, there was no possibility that her mother, Mary H., could take custody of Olivia. After serving eight years in an Arizona prison for murder, Mary H. had broken the conditions of her parole in Arizona and was wanted for parole violation when Olivia was bom; therefore, she was confined in the San Francisco County jail shortly after Olivia’s birth.

On October 10, 1985, the juvenile court ordered Olivia released to defendant’s home. However, the department of social services, which had filed the original petition that Olivia be declared a dependent child of the court, filed a declaration setting forth certain facts of which the court was unaware when it ordered Olivia released to defendant, namely, that (1) defendant was disabled from cerebral palsy to such an extent that he was receiving a full SSI grant, and such a disability might prevent him from physically providing safe and adequate care for Olivia; (2) defendant had a history of substance abuse that required treatment and had in the past required his hospitalization on several occasions for drag overdoses; and (3) defendant had a history of assaultive behavior with knives and had been placed in special schools and residential placements. The declaration further averred that these facts had been added by amendment to the original dependency petition and asked that the court stay its order of October 10 1985, and declare Olivia a dependent child of the juvenile court.