ARMSTRONG, J., Dissenting. I respectfully dissent. The Supreme Court in In re Zacharia D. (1993) 6 Cal.4th 435 [24 Cal.Rptr.2d 751, 862 P.2d 751] noted that Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (Kelsey S.) did not apply to the facts of that case, because Zacharia’s father did not claim that he was prevented from becoming a statutory presumed father on account of the actions of the mother or any third party. The court suggested, however, that the same constitutional considerations at play in Kelsey S. “would arise . . . under facts not presented here, whether file statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S. Extending Kelsey S. to apply in the dependency context would allow such a father to participate as a ‘parent’ in, or end the need for, the dependency proceedings.” (Zacharia D., supra, at p. 451.) Unlike Zacharia D., this is just such a case.
As appellants Dan B. and Tina B. acknowledge, “The facts in this appeal are not disputed.” The juvenile court found that, due to his girlfriend’s extravagant duplicity, Jorge C. first learned of the existence of his child Vincent M. when Vincent was seven months old. While mother abandoned Vincent at the hospital and concocted an outrageous lie to prevent Daniel L., whom she believed to be Vincent’s father, from having a relationship with his son, Jorge was in New York preparing to make a home for mother and himself. The evidence in the record leaves no doubt but that Jorge would have taken Vincent into his home and held him out as his child, thereby becoming a statutory presumed father, but for mother’s actions. As soon as he learned of Vincent’s existence, Jorge made arrangements to take time off from work and flew 3,000 miles to seek custody of Vincent or, barring that, [962]reunification services. The majority’s conclusion that Jorge arrived too late is contrary to a substantial line of Court of Appeal cases recognizing Kelsey S. fathers in the dependency court setting, and affording them the reunification rights which they are due under Welfare and Institutions Code1 section 361.5. Accordingly, I would affirm the juvenile court.
Initially, I note my disagreement with the majority’s conclusion that Dan and Tina have standing to appeal the trial court’s grant of “Kelsey S.” status to Jorge, and the reunification services which flow from that status. As both Jorge and Vincent argue, Dan and Tina are not legally aggrieved by the order, and thus have no standing to appeal.
An “aggrieved party” for purposes of Code of Civil Procedure section 902 is one whose “interest is injuriously affected by the judgment. . . .” (In re Joel H. (1993) 19 Cal.App.4th 1185, 1195-1196 [23 Cal.Rptr.2d 878].) Dan and Tina claim to be aggrieved because “[t]he court’s findings and orders thwarted [their] plan to adopt Vincent.” However, they have no legal right to adopt Vincent. Thus, I fail to see how their legal interests are aggrieved.
The majority does not satisfactorily define Dan and Tina’s legal interests or explain how those interests are affected by the juvenile court’s finding, pursuant to Kelsey S., that Vincent’s biological father is a presumed father entitled to reunification services. That is to say, they do not explain why Dan and Tina are entitled to thwart Vincent’s efforts at reunification with his father by appealing an order which Vincent, through his counsel, supports. Rather, Dan and Tina simply anticipate that, if reunification services are successful, Vincent will be placed with his father. That, however, is the best case scenario envisioned by the Legislature when it fashioned the entire dependency court process. If the process succeeds, foster parents will always relinquish custody of their charges. It is an odd conclusion indeed to deem the hoped-for result—a family’s reunification—a legal injury to the foster parents.
The cases relied on by the majority to support Dan and Tina’s standing to appeal cannot be read to apply to the facts here. The Supreme Court first stated in In re B. G. (1974) 11 Cal.3d 679 [114 Cal.Rptr. 444, 523 P.2d 244] that “de facto parents, such as . . . foster parents . . . , should be permitted to appear as parties in juvenile court proceedings ... to assert and protect their own interest in the companionship, care, custody, and management of the child.” (Id. at p. 693.) However, as the court later explained in In re Kieshia E. (1993) 6 Cal.4th 68 [23 Cal.Rptr.2d 775, 859 P.2d 1290], that standing is [963]limited by the rationale underlying the de facto parent doctrine itself: “The de facto parenthood doctrine simply recognizes that persons who have provided a child with daily parental concern, affection, and care over substantial time may develop legitimate interests and perspectives, and may also present a custodial alternative, which should not be ignored in a juvenile dependency proceeding. The standing accorded de facto parents has no basis independent of these concerns.” (Id. at pp. 77-78.)
The only cases cited by the majority which concern the de facto parents’ right to appeal a dependency court order are In re Joel H., supra, 19 Cal.App.4th 1185 and In re P.L. (2005) 134 Cal.App.4th 1357 [37 Cal.Rptr.3d 6]. In each of these cases, the order appealed from removed the child from the home of the de facto parents, an order in no way analogous to that at issue here, finding Jorge entitled to presumed father status and reunification services.
In In re P.L., a newborn was placed in the home of the appellant foster mother. A selection and implementation hearing was set when the minor was just over a year old. Although the foster mother had initially expressed an interest in adopting the child, she voiced some concerns regarding her health, which caused her to reconsider. Accordingly, the San Bernardino Department of Children’s Services located prospective adoptive parents. The foster mother very quickly changed her mind, and sought to adopt the minor whom she had cared for since birth. At a subsequent placement review hearing, the department recommended a change in placement, which the juvenile court ordered. The foster mother, since accorded de facto parent status, appealed. (In re P.L., supra, 134 Cal.App.4th at pp. 1359-1361.)
The appellate court in In re P.L. reiterated the rights of de facto parents in the dependency court arena: “De facto parents have limited rights that include: (1) the right to an attorney; (2) the right to be present at hearings; and (3) the right to present evidence and be heard. Specifically, they do not have the right to reunification services, custody, or visitation. (In re Kieshia E., at p. 82; Clifford S. v. Superior Court [(1995)] 38 Cal.App.4th [747,] 752 [45 Cal.Rptr.2d 333]; Cal. Rules of Court, rule 1412(e).) While de facto parents are given an opportunity to participate in the proceedings, that status does not give them the rights accorded to a parent or legal guardian. (In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1490-1491 [69 Cal.Rptr.2d 1]; In re Crystal J. (2001) 92 Cal.App.4th 186, 191 [111 Cal.Rptr.2d 646].) Consequently, appellant has no legal standing to complain of the decision to place the child with the new prospective couple since she has no right to custody or continued placement as a mere de facto parent.” (In re P.L., supra, 134 Cal.App.4th at p. 1361.) The court dismissed the appeal.
[964]In In re Joel H., supra 19 Cal.App.4th 1185, de facto parents, who like appellants here were both the minor’s foster parents and prospective adoptive parents, appealed a juvenile court’s order permanently removing the minor from their home upon a finding that they had physically and emotionally abused the child. During the pendency of the appeal, the minor was returned to his mother’s care. The Fresno County Department of Social Services challenged the de facto parents’ right to appeal, based both on mootness and lack of standing. In ruling against the department, the Court of Appeal noted: “Regrettably, it is entirely possible given the family history here that Joel H. may once again become the subject of dependency proceedings. Should this occur, the finding of physical and emotional abuse and order permanently removing Joel from [the de facto parent’s] custody would have res judicata effect and would prevent a court from considering her home if Joel had to be removed from his mother’s custody.” (Id. at p. 1193.) Under those facts, the court found that the de facto parents were aggrieved by the juvenile court’s factual findings, unsupported by the record, which could be used in the future to prevent the minor’s placement in their home. It is worth noting that the de facto parents were permitted to challenge the factual findings that they were abusive, not the removal order itself. Thus, even though the appellate court reversed the factual findings for lack of evidence, the de facto parents were not thereby entitled to return of the child. Joel H. provides no basis for a finding that Dan and Tina are aggrieved by the juvenile court’s orders granting Jorge’s presumed father status and ordering reunification services, because those orders do not adversely affect them as Vincent’s de facto parents.
In sum, because Dan and Tina have no legal right to adopt Vincent, their legal interests are not aggrieved by the juvenile court’s orders, despite the emotional pain they quite understandably feel at the possibility that they may not be able to adopt this child.
Standing to appeal aside, I believe that the dictates of our Supreme Court as set forth in Kelsey S., supra, 1 Cal.4th 816, and as consistently followed by the Courts of Appeal over the last 16 years require affirmance of the juvenile court orders.
Kelsey S. was concerned with the distinction between “biological” or “natural” fathers, who are accorded lesser rights than are “presumed” fathers. The biological father in Kelsey S. challenged the constitutionality of the statutory scheme which permitted the adoption of his child by a third party without his consent. That is to say, California law permitted the termination of a nonoffending biological father’s parental rights over his objection notwithstanding that he would have been a statutory presumed father but for the unilateral actions of the child’s mother. In rejecting this outcome, the [965]Supreme Court ruled that the presumed father statute, Civil Code former “section 7004, subdivision (a) and the related statutory scheme violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child’s biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child’s best interest. 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.) While decided on equal protection grounds, the underlying premise of the ruling is the bedrock principle that a parent has a constitutional right to the care, custody, companionship, and management of his or her child. (Santosky v. Kramer (1982) 455 U.S. 745, 758 [71 L.Ed.2d 599, 102 S.Ct. 1388]; In re Gladys L. (2006) 141 Cal.App.4th 845, 848 [46 Cal.Rptr.3d 434].)
Here, as in Kelsey S., we are faced with the prospect of the termination of a nonoffending biological father’s parental rights over his objection, notwithstanding that he would have been a statutory presumed father but for the unilateral actions of the child’s mother. I find no basis to distinguish Kelsey S., and therefore would conclude that Kelsey S. is applicable to dependency court proceedings, a conclusion reached by every other court which has considered the issue.
In In re Jerry P. (2002) 95 Cal.App.4th 793 [116 Cal.Rptr.2d 123] (review granted May 1, 2002, S104863, opn. ordered published June 6, 2002, review dism. as improvidantly granted Aug. 28, 2002), our colleagues in Division Seven of this District Court of Appeal held that “Adoption of Kelsey S. applies to dependency proceedings and therefore Family Code section 7611 and the related dependency scheme violate the constitutional rights of a man seeking presumed father status to the extent they permit a mother or third person to unilaterally deny him that status by preventing him from receiving the child into his home.” (Id. at p. 797, fn. omitted.) The Supreme Court quoted the foregoing language with approval in In re Nicholas H. (2002) 28 Cal.4th 56, 67 [120 Cal.Rptr.2d 146, 46 P.3d 932]. Indeed, a long line of appellate opinions have implicitly or explicitly recognized that the constitutional concerns which the Supreme Court expressed in Kelsey S. apply with equal force in the dependency court.2 (See, e.g., In re J.L. (2008) 159 Cal.App.4th 1010, 1023 [72 Cal.Rptr.3d 27] [1st Dist., Div. 1] [“Although [Family Code] section 7611 makes no provision for a Kelsey S. father in its [966]list of presumptions, a father asserting valid Kelsey S. rights may effectively qualify for presumed father status as the result of his constitutional right to parent, which overrides any contrary statutory direction.”]; In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1118 [45 Cal.Rptr.3d 198] [2d Dist., Div. 1] [“provided that [father] establishes on remand, that . . . he . . . satisfied the requirements of Adoption of Kelsey S.,” he is entitled to reunification services absent a showing of unfitness]; In re Elijah V. (2005) 127 Cal.App.4th 576, 583 [25 Cal.Rptr.3d 774] [4th Dist., Div. 1] [“A biological father may be accorded parental rights and become a Kelsey S. father when his attempt to achieve presumed parent status under [Family Code] section 7611, subdivision (d) is thwarted by a third party and he made ‘a full commitment to his parental responsibilities—emotional, financial, and otherwise.’ ”]; In re Andrew L. (2004) 122 Cal.App.4th 178 [18 Cal.Rptr.3d 591] [2d Dist., Div. 8]; In re Paul H. (2003) 111 Cal.App.4th 753 [5 Cal.Rptr.3d 1] [3d Dist.]; In re O. S. (2002) 102 Cal.App.4th 1402 [126 Cal.Rptr.2d 571] [4th Dist., Div. 1]; In re Julia U. (1998) 64 Cal.App.4th 532 [74 Cal.Rptr.2d 920] [2d Dist., Div. 6].)
Notwithstanding the great weight of authority to the contrary, the majority concludes that Jorge could not establish that he is a Kelsey S. father because this is a dependency case and not an adoption case; and that in any event, pursuant to In re Zacharia D., he appeared too late to establish his status as a presumed father because the reunification period had ended and a section 366.26 hearing had been set. In my view, Zacharia D. has no application to this case.
In In re Zacharia D., supra, 6 Cal.4th 435, Javan, the minor’s biological father, first appeared in the dependency proceedings at the 18-month hearing (when Zacharia was 19 months old), and requested paternity testing. The juvenile court subsequently denied Javan reunification services and terminated his parental rights. Three weeks before the latter order was entered, Javan married Zacharia’s mother, a step preparatory to becoming a presumed father under Family Code section 7611, subdivision (c).3 On appeal, the Court of Appeal “assumed that Javan, as the biological father, was entitled to receive reunification services before his parental rights could be terminated.” [967](6 Cal.4th at p. 444.) The appellate court also concluded that, as a nonoffending, noncustodial parent, “ ‘Zacharia must be placed . . . with Javan under section 361.2.’ ” (Id. at p. 445.)
Thus, the Supreme Court in Zacharia D. was faced with two discrete issues of statutory interpretation, neither of which is present in this case: (1) Whether the term “parent” as used in section 361.5 includes a biological (as opposed to a presumed) father, and (2) whether the mandate of section 361.2, subdivision (a) that, absent detriment to the child, a minor removed from a parent’s custody must be placed with the “noncustodial parent,” applies only at the time the child is first removed or may be invoked by a biological father who did not assert his paternity until the 18-month hearing.4 The court also considered whether a biological but not a presumed father may request reunification services “for the first time after the 18-month review hearing.” (In re Zacharia D., supra, 6 Cal.4th at p. 445.) Zacharia D.’s conclusion that a presumed father, but not a biological father, is entitled to reunification services is now enshrined in statute.5 Jorge makes no claim that he is entitled to reunification services based upon his status as a “mere” biological father. Nor did Jorge first request reunification services at the 18-month review hearing, or demand that the trial court award him immediate custody of Vincent under section 361.2, subdivision (a). Consequently, the issues addressed in Zacharia D. are simply not present in this case.
As noted above, the Zacharia D. court pointed out (it does not appear that Javan argued the point) that Kelsey S. did not apply to the facts of that case, because Javan did not claim that he was prevented from becoming a statutory presumed father on account of the actions of the mother or any third party. [968]After holding that “parents” entitled to reunification services under section 361.2 include presumed fathers but not biological fathers, the court concluded: “Here, Javan failed to achieve presumed father status. The Court of Appeal therefore erred in concluding that he was a ‘parent’ entitled to receive reunification services.” (In re Zacharia D., supra, 6 Cal.4th at p. 452.) Rather, he was left to seek reunification services based upon the standard of the best interests of the child, by way of a section 388 motion.
From this conclusion, the majority holds that the juvenile court in this case abused its discretion by failing to consider Vincent’s best interests before ordering reunification services. If Jorge stood in the same position as Javan in Zacharia D., I would agree that he can only obtain reunification services by filing a section 388 petition and convincing the court that those services are in Vincent’s best interests. However, Jorge occupies a completely different position than did the biological father in Zacharia D.
Javan had a brief sexual relationship with Wendy, Zacharia’s mother, after which he disappeared from her life. He did not learn of Wendy’s pregnancy because he chose not to maintain contact with her. Upon first learning of Zacharia’s existence, when the child was 16 months old, he did not immediately come forward to care for his child but waited another three months, until the court was about to terminate Wendy’s reunification services at the 18-month review hearing, to request paternity testing. By contrast, Jorge was in a committed relationship with Lena, maintaining a household together and planning their upcoming move to New York. As the juvenile court found, Jorge did not abandon this mother. Rather, Lena engaged in a web of lies to deceive Jorge about the pregnancy6 (because she believed he was not the child’s father) and Daniel L. about Vincent’s live birth (for reasons known only to her). After returning to New York in December 2005, Jorge maintained contact with Lena, speaking with her by telephone and computer approximately twice a week. When in September Lena belatedly told Jorge of the existence of the baby, then seven months old, he contacted the Los Angeles County Department of Children and Family Services (DCFS) to determine how to go about obtaining custody. He was told that the next dependency court hearing was scheduled for October 19, 2006. Jorge took time off from work and flew to Los Angeles to attend the hearing. He was appointed counsel and the very next day filed papers, denominated a section 388 petition, to get custody of his son so he could care for him. In short, Jorge did everything one would hope a man in his position would do. Yet the [969]majority says he was too late, because the reunification period had ended and the case was in permanency planning.
In fact, the “reunification period” in this case ended in March 2006, when Vincent was a month old, since the DCFS sought no reunification services for the family pursuant to section 361.5, subdivision (b)(9), and recommended that the case proceed directly to permanency planning. Applying the logic of the majority opinion, it would seem that no man can ever establish presumed father status if reunification services are not ordered for the mother. Thus, the mother’s unilateral action in refusing to seek reunification services results in the nonoffending father’s loss of rights, precisely the outcome the Supreme Court deemed constitutionally suspect in Kelsey S. This simply cannot be the law of the State of California.
Indeed, it is not. At least three Court of Appeal opinions have sanctioned the provision of reunification services to a presumed or Kelsey S. father who first appeared in the dependency court after the reunification period had ended, without a showing of the child’s best interest. (In re Baby Boy V., supra, 140 Cal.App.4th 1108 [father first appeared and requested services when child was nine months old, after the court had already set a permanent plan hearing]; In re Jerry P., supra, 95 Cal.App.4th 793 [father first appeared and requested services at the § 366.26 selection and implementation hearing]; In re Julia U., supra, 64 Cal.App.4th 532 [all reunification services were terminated when the child was 12 months old, before appellant’s status as biological father was established and before he requested reunification services].)
In sum, in my view a section 388 petition was not necessary in order for Jorge to obtain reunification services. The juvenile court is required to attempt to determine paternity. (Cal. Rules of Court, rule 5.635.) Father sought to be found, and was determined to be, a Kelsey S. father. He was therefore entitled to reunification services, absent showing of unfitness.
“Appellant also has the fundamental right to parent his child. (In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal.Rptr. 623, 579 P.2d 514].) The right to parenting should only be disturbed in extreme cases of persons acting in an incompatible fashion with parenthood. (Ibid.) The relationship of a natural parent and a child is a vital human relationship which has far-reaching implications for the growth and development of the child. (Ibid.) The involuntary termination of that relationship by state action must be viewed as a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment. (Ibid.)” (In re Julia U., supra, 64 Cal.App.4th at p. 544.)
[970]Jorge, a nonoffending Kelsey S. father, is ready, willing and able to parent Vincent. On this record, the State of California has absolutely no interest in keeping this parent and child apart. I would therefore affirm the juvenile court orders.
The petitions of respondent Jorge C. and minor Vincent M. for review by the Supreme Court were denied July 16, 2008, S163570. Kennard, J., and Chin, J., were of the opinion that the petitions should be granted.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Indeed, appellants do not contest the factual and legal findings that Jorge is entitled to presumed father status under Kelsey S. Rather, their sole argument on appeal is that “The order [966]granting the 388 petition is reversible error because the court did not find that reunifying with Father is in Vincent’s best interests and no substantial evidence supports such a finding at any rate.”
Family Code section 7611 provides in relevant part: “A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) [conclusive presumption as to child of marriage] or Chapter 3 (commencing with Section 7570) of Part 2 [voluntary declaration of paternity] or in any of the following subdivisions: [][]... [f] (c) After the child’s birth, he and the child’s natural mother have [967]married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:
“(1) With his consent, he is named as the child’s father on the child’s birth certificate.
“(2) He is obligated to support the child under a written voluntary promise or by court order.”
As the Law Revision Commission commented, Family Code section 7611 continued Civil Code former section 7004, subdivision (a) without substantive change, and is the same in substance as section 4(a) of the Uniform Parentage Act (1973).
In addition to holding that section 361.2, subdivision (a) applies only at the time a child is first removed from the custodial parent’s home, the court held that only a presumed father is entitled to immediate custody under section 361.2. (In re Zacharia D., supra, 6 Cal.4th at pp. 453-454.)
Section 361.5, subdivision (a) currently states: “[W]henever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians. Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child. . . .”
I reject the suggestion that an unmarried man should lose his parental rights if he trusts that his live-in girlfriend will inform him if she becomes pregnant (indeed Lena told Jorge about an earlier pregnancy) and therefore refrains from periodically inquiring if she is pregnant.