dependency articles


Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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XII.  Issues Arising From Paternity Determinations.

A. What are the differences between presumed, alleged, and biological fathers?.

B. When is paternity determined?.

C. Which men get reunification services?.

D. Did the father receive adequate notice of the dependency proceedings?

XII.  Issues Arising From Paternity Determinations.

  1. What are the differences between presumed, alleged, and biological fathers?
    1. "The extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status." (In re Paul H. (2003) 111 Cal.App.4th 753, 760, italics omitted.)

    2. "An alleged biological father in dependency proceedings is a man who may be the father of a child, but whose biological paternity has not been established." (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.)
      1. "Alleged fathers have less rights in dependency proceedings than biological and presumed fathers. [Citation.] An alleged father does not have a current interest in a child because his paternity has not yet been established. [Citation.]" (In re O. S. (2002) 102 Cal.App.4th 1402, 1406.)
    3. A "presumed" father is a man who is not legally married to or has not tried to marry the natural mother but who (1) receives a child into his home and openly holds the child out as his natural child or (2) executes a voluntary declaration of paternity. (Fam. Code, § 7611; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595.)
      1. A man's admission that he was not the child's biological father did not necessarily rebut the presumption that he was the child's father: he had lived with the mother prior and during the child's birth, put his name on the birth certificate as the child's father, and had provided a home for many years for the mother and child. (In re Nicholas H. (2002) 28 Cal.4th 56.)
    4. A "biological" or "natural" father is one whose biological paternity has been established but who has not achieved presumed father status. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.)
  2. When is paternity determined?
    1. At the detention hearing, the court must ask the mother and any other appropriate person to name the presumed or alleged father. (Welf. & Inst. Code, § 316.2.)

    2. Paternity is not an issue before the court in a Welfare and Institutions Code section 366.26 hearing. (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.)
      1. But, where appellant was never served with the appropriate judicial council form and was never assisted by social services in determining his paternity despite numerous attempts to comply, the Third District Court of Appeal vacated the order terminating parental rights and remanded to comply with the provisions set forth in section 316.2 and rule 1413. (In re Paul H. (2003) 111 Cal.App.4th 753, 761‑762.)
  3. Which men get reunification services?
    1. "[O]nly a presumed, not a mere biological, father is a >parent' entitled to receive reunification services under section 361.5. [Citation.]" (In re Zacharia D. (1993) 6 Cal.4th 435, 451.)

    2. But the juvenile court may order reunification services for a biological father if the court determines that the services will benefit the child. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.)

    3. An 18-year-old man who had a child with his 16-year-old girlfriend was entitled to demonstrate a constitutional right to preserve his relationship with his child and withhold his consent to the child's adoption. (In re Kyle F. (2003) 112 Cal.App.4th 538, 545.) A father whose child is conceived in an act of nonconsensual sexual intercourse does not have such a right. (In re Kyle F. (2003) 112 Cal.App.4th 538, 544.)
  4. Did the father receive adequate notice of the dependency proceedings?
    1. "[E]ach alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity‑Waiver of Rights (JV‑505) shall be included with the notice...." (Welf. & Inst. Code, § 316.2, subd. (b); see also Cal. Rules of Court, rule 1413(g).)