In re D.W. CA4/1

Filed 6/18/15 In re D.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.W., a Person Coming Under the
Juvenile Court Law.
D066910
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ011285)
Plaintiff and Respondent,

v.

MICHAEL S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kimberlee

Lagotta, Judge. Reversed.

Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
 When a child is removed from parental custody in a dependency case, a presumed

father is ordinarily entitled to receive reunification services to facilitate the child's return.

(Welf. & Inst. Code, § 361.5.)1 If reunification does not occur within a specified time,

the juvenile court will terminate reunification services and set a selection and

implementation hearing under section 366.26. (In re Marilyn H. (1993) 5 Cal.4th 295,

308 (Marilyn H.).) Once this happens, a presumed father seeking reunification services

ordinarily must do so by way of a section 388 petition in which he bears the burden of

establishing changed circumstances and that modification is in the child's best interests.

(In re Zacharia D. (1993) 6 Cal.4th 435, 447 (Zacharia D.).) The unique facts of this

case fall outside the ordinary rule.

Michael S. appeals the juvenile court's order denying his request for reunification

services with minor D.W. The juvenile court initially ordered reunification services be

provided to D.W.'s mother, Amber C., but did not order any be provided to Michael

because he was an alleged, but not presumed, father. Michael repeatedly requested that

the court elevate his fatherhood status, but the court deferred his requests. The court later

terminated Amber's reunification services and set a section 366.26 hearing, but then

granted Amber's section 388 petition seeking to vacate the section 366.26 hearing and

reinstate her reunification services. The court then elevated Michael to presumed father

status. However, despite Michael's presumed father status, and despite the fact that no

section 366.26 hearing was then pending, the juvenile court ruled Michael's request for

1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
reunification services was governed by section 388 (and its changed-circumstances and

best-interests requirements) and denied his request. Under the circumstances, we

conclude this was error and reverse the order denying Michael's request for reunification

services.

FACTUAL AND PROCEDURAL BACKGROUND

On July 4, 2013, police arrested Amber on a felony warrant and for possession of

a controlled substance, and Michael for violating a restraining order prohibiting contact

with Amber. Police took into protective custody two of Amber's children: then-four-

year-old D.W., and his then-one-year-old half brother Michael S., Jr.2 On July 8, the San

Diego County Health and Human Services Agency (Agency) filed petitions under section

300, subdivisions (b) and (g) on behalf of D.W. and Michael Jr.3

Amber identified Albert W. as D.W.'s father, and Michael as Michael Jr.'s. Albert

denied being D.W.'s father and informed social workers of an upcoming hearing to

determine D.W.'s paternity in a child support case Amber filed against Albert. Albert did

not want to speak any further with social workers until his paternity was confirmed with a

DNA test.

At the July 9 detention hearing, the juvenile court found a prima facie showing

was made on the petition and detained D.W. in out-of-home care. At a continued

detention hearing the next day, Michael requested to be designated as D.W.'s and

2 We will refer to appellant as Michael and to Michael S., Jr., as "Michael Jr."

3 Michael Jr. is not a party to this appeal. We mention him only as relevant to
Michael's appeal.
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Michael Jr.'s presumed father under Family Code section 7611, subdivision (d).4 The

court confirmed the prima facie finding on the petition, found Michael to be Michael Jr.'s

presumed father, and deferred the issue of D.W.'s paternity because Albert's test results

were still pending.

The Agency's jurisdiction and disposition report indicated D.W. and Michael Jr.

were detained with a relative and recommended they remain in out-of-home care.

Paternity testing was never completed in Albert's child support case because Amber did

not take D.W. to be tested. Amber did not make any contact with the Agency and was

rearrested on July 19. Michael admitted to previous drug use but stated he had been

clean for three to four months. He remained incarcerated and planned on being released

to a drug treatment program.

At the jurisdiction and disposition hearing, Michael renewed his request for

presumed status as to D.W., asserting he had filled out a paternity questionnaire, had

raised D.W. since he was an infant, and that Albert had no relationship with D.W. D.W.'s

counsel informed the court she had spoken to D.W., who confirmed he viewed Michael

as his father. The court added Michael to D.W.'s petition as an alleged father, and

deferred further paternity findings until the next hearing, when results of Albert's

paternity testing were expected to be available.

At an August 22 settlement conference, Amber and Michael submitted to

jurisdiction on the section 300, subdivision (b) count, and the court dismissed (at the

4 Family Code section 7611 provides: "A person is presumed to be the natural
parent of a child if . . . [¶] The presumed parent receives the child into his or her home
and openly holds out the child as his or her natural child." (Id., subd. (d).)
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Agency's request) the subdivision (g) count. The court ordered that the boys remain

placed with a relative, that Amber receive reunification services as to both D.W. and

Michael Jr., and that Michael receive reunification services only as to Michael Jr.

Michael renewed his request for presumed status as to D.W. However, because paternity

test results still were not available, the court deferred the issue and set a special hearing

on paternity for September 30. The Agency's counsel informed the court that if it turned

out that Albert was not D.W.'s biological father, the Agency would not object to

Michael's request for presumed status and would provide Michael reunification services

as to D.W.

At the September 30 special hearing, paternity test results confirmed Albert was

D.W.'s biological father. However, Albert did not appear at the hearing. The court

appointed counsel for Albert and continued the hearing so he could appear and so the

Agency could address whether to provide services to him or to recommend placing D.W.

with him. Michael advised the court he was still seeking presumed status.

At the continued special hearing on October 21, Albert's counsel and the Agency

reported being unable to reach him. The juvenile court amended the petition to reflect

Albert was D.W.'s biological father. However, the court found Albert was not showing

an interest in reunifying with D.W. and, accordingly, denied Albert reunification services.

The court advised Albert's counsel that if he became interested in receiving services in

the future, he could request them by way of a section 388 petition. The attorney who

specially appeared on behalf of Michael's regular attorney informed the court Michael

had not had any contact with her office. The court confirmed Michael would remain

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identified as D.W.'s alleged father. The court set a six-month review hearing for

February 18, 2014.

The Agency's report for the six-month review hearing recommended terminating

reunification services and setting a section 366.26 hearing to determine a permanent plan

for D.W. Amber was not making progress in services, had been in and out of jail, and

was currently incarcerated with a criminal court date pending. Michael had left a drug

treatment program and was incarcerated for four weeks in October 2013, but was

currently submitting clean drug tests to the probation department and living at the St.

Vincent de Paul treatment program. Both parents set the matter for trial.

In an addendum report dated March 7, 2014, the Agency changed its

recommendation to offer Amber continued reunification services as to D.W. and Michael

Jr., and to offer Michael continued reunification services as to Michael Jr. only. Both

parents submitted on the Agency's report. However, the children's counsel disagreed

with the Agency's changed recommendation, so the court set the matter for trial.

The juvenile court conducted the contested six-month review hearing on March

28, 2014. After receiving evidence, the court terminated Amber's reunification services

as to both boys, but continued to extend reunification services to Michael as to Michael

Jr. The court set a section 366.26 hearing as to D.W. and set a 12-month review hearing

as to Michael Jr.

The Agency's report for the section 366.26 hearing as to D.W. recommended

terminating parental rights and ordering a permanent plan of adoption. The report

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asserted that D.W. stated he did not wish to visit with either of his parents. Amber set the

matter for trial.

On August 7, 2014, Amber filed a petition under section 388 requesting that the

juvenile court vacate the section 366.26 hearing and reinstate reunification services.

Amber cited as changed circumstances her completion of a drug treatment program and

parenting course, and participation in a perinatal case management program.

On August 20, 2014, Michael filed a petition under section 388 requesting that the

court elevate him to presumed father status, vacate the section 366.26 hearing, and order

reunification services as to D.W. Michael cited as changed circumstances his

participation in a drug treatment program, residence at a sober living program, and

visitation with D.W. and Michael Jr.

During an August 20, 2014, settlement conference, the juvenile court made a

prima facie finding on each parent's section 388 petition and set them for contested

hearings. The Agency informed the court it intended to submit on Amber's petition

because the Agency believed the court erroneously terminated Amber's reunification

services at the six-month review hearing. The Agency believed the court should not have

terminated reunification services at that stage absent a request by the Agency under

section 388.

At an October 7, 2014, settlement conference, the Agency's and the children's

counsel submitted on Amber's section 388 petition, agreeing she should receive

reunification services until the 18-month date. The court granted Amber's petition,

vacated the section 366.26 hearing, and ordered that she receive reunification services

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until the 18-month date. The court specified its ruling was limited to Amber and

confirmed Michael's section 388 petition was set for trial on October 10.

On October 10, the Agency filed an addendum report opposing Michael's section

388 petition and request for reunification services. The Agency reported receiving a

referral a month earlier in which D.W. stated he was afraid of Michael because Michael

"slammed him up against the wall and would not release him until he stopped crying,"

and "touched his penis more than once and it made him feel uncomfortable."

At the outset of the October 10 contested hearing, the juvenile court and counsel

addressed the appropriate procedural vehicle for addressing Michael's requests that his

paternity status be elevated and that he be provided reunification services as to D.W.

Michael's counsel argued neither request needed to proceed via a section 388 petition.

The court allowed Michael to withdraw his section 388 petition as to elevating paternity

and heard the matter as a contested hearing. The court required Michael to proceed under

section 388 on his request for services.

The juvenile court heard testimony from Michael, Amber, and the social worker

assigned to D.W.'s case. The court also admitted in evidence certain of the Agency's

reports and addenda, and Michael's parentage inquiry form. At the conclusion of the

hearing, the court found Michael had met his burden of establishing himself as D.W.'s

presumed father under Family Code section 7611, subdivision (d). Regarding

reunification services, however, the court found Michael did not meet his burden under

section 388 of showing either changed circumstances or that ordering reunification

services would be in D.W.'s best interests.

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 Michael timely appealed.

DISCUSSION

Michael contends the juvenile court erred by requiring him to request reunification

services via a section 388 petition, which required him to show changed circumstances

and that doing so was in D.W.'s best interests. (§ 388; In re Casey D. (1999) 70

Cal.App.4th 38, 47.) He asserts that because the court confirmed his presumed father

status when the case was still in a reunification posture—because the court had already

granted Amber's section 388 petition seeking to vacate the section 366.26 hearing and

restore her services—he was automatically entitled to receive reunification services under

section 361.5 without satisfying section 388's criteria. Under the unique circumstances

presented here, we agree.

A. Legal Framework

"As a general rule, when a child is removed from parental custody under the

dependency statutes, the juvenile court is required to provide reunification services

pursuant to section 361.5 to 'the child and the child's mother and statutorily presumed

father.' "5 (In re Jaden E. (2014) 229 Cal.App.4th 1277, 1281, quoting § 361.5, subd.

5 "In dependency proceedings, fathers are divided into four categories: de facto
fathers, alleged fathers, natural fathers and presumed fathers. A man, such as a
stepfather, who has assumed the role of parent, is a 'de facto father.' A man who may be
the father of the dependent child but has not been established to be the natural or
presumed father is an 'alleged father.' A man who has been established to be the
biological father is a 'natural father.' A man who has held the child out as his own and
received the child into his home is a 'presumed father.' A 'natural father' can be, but is not
necessarily, a 'presumed father' and a 'presumed father' can be, but is not necessarily, a
'natural father.' " (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, fns. omitted.)
"Presumed father status ranks highest." (Ibid.) "Presumed fatherhood, for purposes of
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(a).) "The purpose of these reunification services is 'to facilitate the return of a dependent

child to parental custody.' " (Ibid.) "Unless an express exemption exists, reunification

services provided pursuant to section 361.5 are mandatory, subject to strict timelines, and

monitored through periodic court reviews at which parents are admonished that failure to

participate successfully in reunification efforts could lead to the termination of their

parental rights. (§§ 361.5, 366.21, 366.22.)" (Ibid.)

" 'If the child may not safely be returned to the parents within a maximum of 18

months from removal,' the court must terminate reunification efforts and set a section

366.26 selection and implementation hearing.' " (Zacharia D., supra, 6 Cal.4th at p.

447.) "Prior to terminating reunification services, the court must make a determination

that it would be detrimental to the child to be returned to the parent's custody." (Marilyn

H., supra, 5 Cal.4th at p. 308.) "[U]p until the time the section 366.26 hearing is set, the

parent's interest in reunification is given precedence over a child's need for stability and

permanency." (Id. at p. 310.) "Once reunification services are ordered terminated, the

focus shifts to the needs of the child for permanency and stability." (Id. at p. 309.) "The

burden thereafter is on the parent to prove changed circumstances pursuant to section 388

to revive the reunification issue." (Ibid.)

We review de novo the juvenile court's determination that Michael's request for

reunification services was governed by section 388 instead of section 361.5. (Jose O. v.

dependency proceedings, denotes one who 'promptly comes forward and demonstrates a
full commitment to his paternal responsibilities—emotional, financial, and otherwise[.]' "
(Id. at pp. 801-802.) "Presumed father status entitles the father to . . . a reunification
plan." (In re T.R. (2005) 132 Cal.App.4th 1202, 1209 (T.R.).)
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Superior Court (2008) 169 Cal.App.4th 703, 706 ["Questions of law that do not involve

resolution of disputed facts are subject to de novo review, giving no deference to the

superior court's ruling."].)

B. Analysis

Michael attained presumed father status while D.W.'s dependency was in a

reunification posture and no section 366.26 hearing was pending. Therefore, he was

presumptively entitled to receive reunification services. (§ 361.5; T.R., supra, 132

Cal.App.4th at p. 1209.) The Agency argues, however, that because the juvenile court

had at one time set a section 366.26 hearing, Michael could only establish his entitlement

to reunification services by prevailing on a section 388 petition. We are not persuaded.

The Agency asserts D.W.'s dependency case was only restored to a limited

reunification posture because the juvenile court granted Amber's section 388 petition.

The Agency argues that under In re Katelynn Y. (2012) 209 Cal.App.4th 871, Michael is

not entitled to the benefit of the court's ruling on that petition because "the court does not

consider the parents as one unit, but instead treats each of them on his or her own merits."

(Id. at p. 877.) We find this principle inapplicable. Amber had to proceed by way of a

section 388 petition because the juvenile court had previously entered an order

terminating her reunification services and setting a section 366.26 hearing.6 This

previous order was based on the juvenile court's evaluation of Amber's "own merits." (In

re Katelynn Y., at p. 877.) By contrast, the court had never considered Michael's "own

6 It is somewhat disingenuous for the Agency to assert this previous order as the
basis for requiring Michael to proceed by way of section 388 petition when the Agency
argued below that the juvenile court erred by entering it.
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merits" because it had not yet addressed his request for presumed father status or ever

ordered that he receive (or not receive) reunification services as to D.W. (Ibid.)

The Agency also relies on Zacharia D. for the proposition that "if a man fails to

achieve presumed father status prior to the expiration of any reunification period in a

dependency case . . . , he is not entitled to such services under section 361.5," but rather,

"[h]is only remedy . . . [is] to file a motion to modify under section 388." (Zacharia D.,

supra, 6 Cal.4th at p. 453.) Zacharia D. is distinguishable. There, a biological father had

reason to believe at the outset of the dependency case that he was the child's father, but he

waited until the 18-month review hearing before first requesting paternity testing. (Id. at

p. 441.) The juvenile court terminated the mother's reunification services and set a

section 366.26 hearing before ruling on the father's paternity status. (Ibid.) The court

later found the father to be the child's biological and presumed father, but declined to

extend additional reunification services because "the County had no obligation to offer

[father] reunification services until the court declared him a parent, which had not

occurred until June 7 because of [father]'s 'own doing.' " (Id. at pp. 443, 441-442, italics

added.) Under those circumstances, the Supreme Court was understandably concerned

with a biological father "impeding a child's permanent and timely placement" due to the

father's "decision to wait until the 18-month hearing to assert his paternity claim." (Id. at

p. 452.)

We are not confronted with that concern. First, it does not appear that providing

Michael with reunification services would have impeded D.W.'s permanent placement—

the Agency submitted on Amber's request seeking to vacate the section 366.26 hearing

12
and provide her additional reunification services.7 Second, the juvenile court's delay in

confirming Michael's presumed father status was not of his " 'own doing.' " (Zacharia

D., supra, 6 Cal.4th at p. 443.) To the contrary, unlike the father in Zacharia D., Michael

repeatedly asserted presumed father status at the outset of the dependency. Although, as

the Agency points out, a year elapsed without Michael pressing the court to rule on his

request, we do not find this fact sufficient to bring this case within the holding of

Zacharia D.

Therefore, based on the unique facts of this case—including, but not limited to,

Michael's early and repeated assertion of presumed father status, the trial court's repeated

deferral of the issue, and the questionable propriety with which the court terminated (but

later restored) Amber's reunification services and set a section 366.26 hearing—we

conclude Michael was entitled to receive reunification service as to D.W. without first

prevailing on a section 388 petition. It was legal error for the juvenile court to find

otherwise.

7 The Agency requests that we take judicial notice of a March 9, 2015, minute order
in which the juvenile court continued the 18-month review hearing to April 20, 2015, "in
order to transition [D.W.] back into the mother's care." The Agency asserts the minute
order suggests D.W. will reunify with Amber "in the next few weeks," thereby rendering
Michael's appeal moot. Michael opposes the request and disagrees with the Agency's
"liberal and conjectural interpretation" of the minute order. We deny the Agency's
request for judicial notice. Even if we were to consider the minute order in the manner
the Agency suggests, we would not conclude it renders Michael's appeal moot—D.W.'s
reunification with Amber does not address the merits of Michael's request for services in
an ongoing dependency. The Agency's interpretation would also underscore the point
that granting reunification services to Michael would not have impeded D.W.'s
permanent placement via a section 366.26 hearing.
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 The Agency argues that even if the juvenile court erred, the error was not

prejudicial because Michael received reunification services in Michael Jr.'s dependency

case. Michael counters that he needs different services (such as conjoint therapy) for

D.W. because D.W. is older than Michael Jr. and because a rift appears to have

developed between Michael and D.W. during the dependency. We agree with Michael.

It does not appear to us that the reunification services he received in Michael Jr.'s case

were sufficiently tailored to the different circumstances of Michael's relationship with

D.W. (In re Alvin R. (2003) 108 Cal.App.4th 962, 972 ["Reunification services need not

be perfect. [Citation.] But they should be tailored to the specific needs of the particular

family."].) Accordingly, the error was prejudicial.

DISPOSITION

The order is reversed.

MCCONNELL, P. J.
WE CONCUR:

NARES, J.

HALLER, J.

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