Los Angeles County Department of Children & Family Services v. J. R.

PERLUSS, J.,

Concurring and Dissenting.—I concur in part II of the majority’s opinion, holding as a matter of statutory interpretation that a finding of nongenetic paternity does not necessarily defeat presumed father status under Family Code section 7611, subdivision (d).1 I also agree in general with much of the analysis in part III.B., holding that in appropriate cases the constitutional rights of unwed biological fathers recognized in Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (Kelsey S.) extend to dependency proceedings—at least insofar as those proceedings involve the potential termination of the father’s parental rights. (See In re Zacharia D. (1993) 6 Cal.4th 435, 450-451 [24 Cal.Rptr.2d 751, 862 P.2d 751].)2 However, I respectfully dissent from the judgment reversing the order denying J.R. reunification services in this case because I believe substantial evidence supports findings by the juvenile court that demonstrate J.R. failed to satisfy the standard set forth in Kelsey S.

1. The juvenile court found J.R. failed to come forward promptly in the dependency proceedings

The indispensable prerequisite for a finding that a man is a Kelsey S. father is that, both before and after birth, he “promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit.” (Kelsey S., supra, 1 Cal.4th at p. 849.) For Kelsey S. to be applied in the dependency context, the father must “come[] forward early in the dependency process.” (In re Zacharia D., supra, 6 Cal.4th at p. 451 [father who did not appear until 18-month review hearing under Welf. & Inst. Code, § 366.22 failed to demonstrate commitment consistent with the standard set forth in Kelsey 5.].)

As discussed in the majority’s opinion, J.R. had daily contact with Jerry at the hospital in the period immediately following his birth. However, in denying J.R.’s request for reunification services, the juvenile court found *819that J.R., although aware of the pending dependency case, failed to come forward promptly: The court specifically found J.R. had received appropriate notice for the disposition hearing held on February 2, 1999, but did not appear in court until the June 1, 1999 hearing pursuant to Welfare and Institutions Code section 366.26, some four months later. In concluding that J.R. significantly delayed his appearance in the dependency proceedings, the juvenile court necessarily found the factual predicate for applying Kelsey S. was absent,3 even assuming it could be extended to this type of case under appropriate circumstances.

2. The juvenile court’s findings are supported by substantial evidence

The juvenile court’s findings are reviewed under the substantial evidence standard. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227 [69 Cal.Rptr.2d 380].) Those findings cannot be disturbed if there is any solid, credible evidence in favor of the ruling, giving benefit to every reasonable inference in favor of the prevailing party and resolving all conflicts in support of the court’s ruling. (Ibid)

“ ‘In reviewing the sufficiency of the evidence, our review requires that all reasonable inferences be given to support the findings and orders of the juvenile court and the record must be viewed in the light most favorable to those orders. [Citation.] Those findings and orders may not be disturbed if they are supported by substantial evidence. [Citations.] As stated: “Issues of fact and credibility are questions [of fact] for the trial court, not this court. [Citation.] ‘The rule is clear that the power of the appellate courts begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.’ [Citation.]” [Citation.]’ ” (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734 [7 Cal.Rptr.2d 60].)

Under this deferential standard, the findings underlying the juvenile court’s denial of reunification services to J.R. should be affirmed. Those findings are supported not only by the evidence of J.R.’s four-month delay in appearing in the dependency proceedings, emphasized in the juvenile court’s ruling, but also by evidence before the court that J.R. had initially refused to cooperate in the dependency case by providing his residence address to *820DCFS, failed to attend or cancel a scheduled visit with Jerry in December 1998 and in January 1999, following telephone contact with DCFS, failed to keep an appointment with the social worker to discuss Jerry’s situation.

3. In light of the juvenile court’s findings, it is unnecessary to reach the constitutional issue raised by J.R.

Because I would affirm the juvenile court’s orders based on its factual determinations, I need not resolve the difficult constitutional issue at the core of the majority opinion: Whether an individual who is neither the child’s biological father nor a statutorily presumed father but who has nonetheless demonstrated a strong commitment to parenting the child has a constitutional right to reunification services even though the Legislature has declined to provide for such services.4

Were I to consider that question, however, I would want to address at least the following issues, not all of which are fully discussed in the majority’s opinion:

(1) In light of the Legislature’s creation of a statutory category of “presumed fathers” in Family Code section 7611, subdivision (d) that does not require a direct genetic relationship with the child, what is the significance, if any, of such a relationship to the required constitutional analysis? Is it arbitrary or irrational to provide reunification services to a biological father who has demonstrated his commitment to parenting but has never lived with his child while denying such services to an otherwise similarly situated nonbiological “father”? In this regard, I would necessarily consider the language from the United States Supreme Court’s decision in Lehr v. Robertson (1983) 463 U.S. 248, 262 [103 S.Ct. 2985, 2993, 77 L.Ed.2d 614], referred to in the majority’s opinion, that “The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.” (See also Kelsey S., supra, 1 Cal.4th at p. 844 [“a biological father has a constitutionally cognizable opportunity interest in developing a relationship with his child”].)
(2) The statutory scheme considered constitutionally impermissible in Kelsey S. was one that differentiated between the rights of a child’s biological father and his or her biological mother regarding termination of parental *821rights. (Kelsey S., supra, 1 Cal.4th at p. 849 [the statutory scheme at issue “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”].) Even assuming an “equitable father” has some cognizable constitutional interest in developing a relationship with the child (cf. Smith v. Organization of Foster Families (1977) 431 U.S. 816, 846 [97 S.Ct. 2094, 2110-2111, 53 L.Ed.2d 14] [recognizing foster parent has a limited constitutional interest in his or her relationship with a foster child]), how does Kelsey S.’s finding of invidious discrimination between the rights of a biological father and those of a biological mother affect the definition, extent and limits of the “equitable father’s” rights?
(3) If the conditions for protection under Kelsey S. do not depend on a direct genetic relationship, is there any more justification for them to depend on the man’s “openly holding] out the child as his natural child,” rather than simply recognizing the child openly as his “daughter” or “son”? If the answer to that question is “no,” then does the constitutional reach of Kelsey S. inevitably extend to stepparents, de facto parents5 and other nongenetically related individuals (e.g., foster parents) who want to parent the child? Is it within our purview to so expand the scope of mandatory reunification services, or is that a matter for the Legislature?

I recognize, as does the majority, that the constitutional issue raised by J.R. is of great significance to possibly hundreds, if not thousands, of men actively carrying out parental responsibilities. Nonetheless, I feel constrained to wait for what I consider a factually appropriate case before offering my own views as to the proper resolution of these questions. (Cf. In re Zacharia D., supra, 6 Cal.4th at p. 451 [deferring decision whether Kelsey S. should be extended to dependency proceedings because father failed to satisfy Kelsey S. criteria].)

A petition for a rehearing was denied February 27, 2002, and the opinion was modified to read as printed above.

This issue is currently pending before our Supreme Court in In re Nicholas H. (2001) 91 Cal.App.4th 86 [110 Cal.Rptr.2d 126], review granted November 14, 2001, S100490.

The majority holds in part III, as did Division Six of our court in In re Julia U. (1998) 64 Cal.App.4th 532 [74 Cal.Rptr.2d 920], that a Kelsey S. father has a constitutional right to reunification services. Subsequent to the Supreme Court’s decision in In re Zacharia D., supra, 6 Cal.4th at pages 447-451, which considered but did not decide that issue, the Legislature amended Welfare and Institutions Code section 361.5, subdivision (a), to authorize the juvenile court to provide reunification services for a biological father who is not a statutorily presumed father, including a Kelsey S. father, “if the court determines the services will benefit the child.” (Stats. 1997, ch. 793, § 17.) For the reasons discussed in the text, I do not believe this is an appropriate case in which to address whether the Legislature’s distinction between a statutorily presumed father’s unconditional right to services (subject to exceptions listed in Welf. & Inst. Code, section 361.5, subd. (b)) and a Kelsey S. father’s right to request such services in the best interests of the child offends either the federal or state Constitutions.

The Kelsey S./In re Zacharia D. requirement that the father promptly come forward in dependency proceedings and J.R.’s failure to do so were expressly argued by counsel for Los Angeles County Department of Children and Family Services (DCFS) at the initial hearing before the referee as a ground for denying reunification services. Judge Nash, who heard the matter de novo following the grant of the rehearing petition, read the transcript of the prior hearing and took judicial notice of its contents. In addition, Jerry’s counsel urged at the de novo hearing that the court order family reunification services under an expanded application of Kelsey S.

Even if such an “equitable father” has no constitutional right to reunification services, he may nonetheless have a constitutionally cognizable interest sufficient to require notice of the dependency proceedings and the right to be represented and to present evidence at hearings at which the status of the dependent child is at issue. (Compare Cal. Rules of Court, rule 1412(e) [recognizing rights of de facto parents to participate in dependency hearings] with In re Jody R. (1990) 218 Cal.App.3d 1615, 1628 [267 Cal.Rptr. 746] [de facto parents are not entitled to reunification services].)

A de facto parent is a person “who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.” (Cal. Rules of Court, rule 1401(a)(8).)