Dependency Case Law

In re Joshua R. (Dec. 9, 2002) 104 Cal.App.4th 1020 [128 Cal.Rptr.2d 241]. Court of Appeal, Fourth District, Division 3.

The juvenile court denied the alleged father’s request for paternity testing after the filing of a third dependency petition for the child. The child was first taken into custody immediately after his birth due to the incarceration and drug addiction of his mother, who was 17 at the time. The mother identified the alleged father as a possible father of the child. The juvenile court terminated dependency proceedings upon finding that the mother had complied with her case plan.

The alleged father was not a present as a party during the first case. Subsequently, the mother abandoned the child and failed to adhere to her case plan, and the social services agency filed another dependency petition for the child. The alleged father, who was incarcerated at the time, received notice of the petition, and he signed a form denying paternity and waived his right to appear at the upcoming hearing. The child was later determined to be a dependent of the juvenile court once again. The juvenile court terminated reunification services to the mother for failing to comply with her case plan. Later, the alleged father expressed a desire to accept responsibility as the child’s father and asked about getting a paternity test. Before the Welfare and Institutions Code section 366.26 permanency hearing, the mother filed a section 388 petition requesting that the court vacate its previous order terminating services to her due to the changed circumstances of the alleged father’s involvement. The juvenile court granted the mother’s request and terminated the dependency proceedings 18 months later due to the mother’s compliance with her case plan.

At the jurisdictional/dispositional hearing, the alleged father requested a paternity test under Family Code section 7551. The juvenile court denied the alleged father’s request, reasoning that a paternity test was irrelevant to the proceedings because the alleged father would not qualify as a presumed father. The alleged father appealed the juvenile court’s decision, arguing that the juvenile court abused its discretion by denying his request for paternity testing because the statutory criteria for the testing were met and denial of the testing was not in the child’s best interest.

The Court of Appeal affirmed the juvenile court’s decision and held that (1) the alleged father was unable to qualify as a presumed father as a basis for a right to custody, and (2) even if the alleged father could establish status as a biological father, granting family reunification services would not benefit the child. First, the appellate court reasoned that Family Code section 7551 provides that an alleged father is entitled to a paternity test for a child in a civil proceeding in which paternity is a relevant fact. The appellate court noted that, based on the juvenile court’s uncontested finding that the alleged father did not qualify as a presumed father of the child pursuant to Family Code section 7611, a finding of paternity would not entitle the alleged father to services or custody of the child. The appellate court emphasized that in In re Zacharia D. (1993) 6 Cal.4th 435 the California Supreme Court stated that only a presumed, not a mere biological father, is entitled to reunification services. Therefore, the appellate court concluded that the juvenile court properly held that a paternity finding was irrelevant in this case.

Second, the appellate court held that even if the alleged father were proved to be the biological father, offering the father reunification services would not benefit the child. The appellate court reasoned that the following facts provided substantial evidence to support the finding that the child would not benefit from being reunited with the alleged father: the alleged father never sought visitation services during the two previous dependency petitions, he never provided financial support to the child, he failed to appear at any of the previous dependency proceedings, he previously denied paternity and relinquished any claim to family reunification services, and he was convicted of a felony again and was to serve a three-year sentence. Therefore, the appellate court affirmed the juvenile court’s decision denying the alleged father a paternity test because he was unable to qualify as a presumed father and providing him reunification services would not be in the best interest of the child.