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C.A.: Biological Father Waited Too Long to Assert Rights
By SHERRI M. OKAMOTO, Staff Writer
A biological father seeking reunification with his child who comes forward after the reunification period has ended must establish changed circumstances or new evidence that reunification is in the child’s best interest, this district’s Court of Appeal held Friday.
In a split decision, Div. Five found that Los Angeles Superior Court Judge Emily Stevens abused her discretion, concluding that a father whose paternity was hidden from him by the mother is a presumed father entitled to reunification services without regard to the best interests of the child and reversed the dependency court’s decision.
Vincent M.’s mother—children in dependency cases are only identified by name and initial— surrendered him for adoption at birth, and declined to identify his father. The judge found Vincent a ward of the court, and because his parents’ whereabouts were unknown, did not order reunification services. Stevens set a permanency planning hearing, with adoption by Vincent’s de facto parents as the plan.
The mother had allegedly deliberately concealed the pregnancy and birth from Vincent’s asserted biological father, identified in the opinion as Jorge C., who had relocated out of state and was allegedly expecting mother to join him and continue their relationship. Jorge C. said the mother finally told him about Vincent when the baby was seven months old, and he flew back to California to try and obtain custody.
He appeared at the permanency hearing, claiming paternity. He filed a petition under Welfare and Institutions Code Sec. 388 requesting presumed father status and reunification services.
Stevens found that Jorge C. was Victor’s presumed father under case law, and held that because he “came forward at the earliest possible time,” she had “no choice” but to find him the presumed father, entitled to reunification services regardless of the child’s best interests.
Writing for the appellate majority, Justice Sandy R. Kriegler reasoned that because a child’s de facto parents have an interest in the companionship, care, custody and management of the child, and that these rights and interests were injuriously affected by the dependency court’s ruling, Vincent’s prospective adoptive parents had standing to appeal.
Citing Civil Code Sec. 7004(a)(4), Kriegler said Jorge C. was not a presumed father because he did not receive Vincent into his home and hold the child out as his own. Relying on In re Zacharia D. (1993) 6 Cal.4th 435—which held that a man who fails to achieve presumed father status prior to the expiration of the reunification period is not entitled to reunification services unless he can establish, in a Sec. 388 petition. changed circumstances or new evidence demonstrating that the child’s best interest would be promoted by reunification—Kriegler concluded the trial judge had abused her discretion in disregarding Vincent’s best interests.
Presiding Justice Paul A. Turner sided with Kriegler, but Justice Orville Armstrong argued in dissent that Jorge C. occupied a “completely different position than the biological father in Zacharia D,” because Zacharia D. involved a father who learned of his child’s birth after he had abandoned the child’s mother and who waited until the court was about to terminate the mother’s reunification services before coming forward. In contrast, Armstrong noted, the mother in this case had “engaged in a web of lies” to conceal the pregnancy and birth from Jorge C., who “did everything one would hope a man in his position would do” upon learning of Vincent’s existence.
“It is an odd conclusion indeed to deem the hoped-for result–a family’s reunification–a legal injury to the foster parents,” Armstrong added, disputing the majority’s conclusio the same Sec. 388 requirements applied to all biological fathers who appear after the end of the reunification period, regardless of whether his paternity was concealed from him or not.
He reasoned that because Vincent’s de facto parents had no legal right to adopt the child, they were not legally aggrieved. He further criticized the majority for failing to explain why the de facto parents were entitled to challenge the child’s ability to reunify with his father by appealing an order the child’s attorney supported.
William D. Caldwell represented the potential adoptive parents, Lawrence E. Fluharty was court-appointed to represent Jorge C., and Aida Aslanian was court-appointed to represent the child.
The case is In re Vincent M., 08 S.O.S. 2020.