Wednesday, June 28, 2006
C.A. Overturns Denial of Claim to Paternity of Dependent Child
Denial of Alleged Father’s Rights Without Allowing Blood Test Precipitous and ‘Difficult to Understand,’ Vogel Says
By a MetNews Staff Writer
A man who claimed paternity of a young child immediately upon learning of the baby’s existence was entitled to assert presumed father status in dependency court, the Court of Appeal for this district has ruled.
Div. One Justices Miriam A. Vogel, Robert M. Mallano and Frances Rothschild voted Monday to reverse Los Angeles Superior Court Judge S. Patricia Spear’s order terminating the parental rights of a man identified in the opinion only as Jesus H.
The child in question is the fourth child of Gladys V, as the opinion called her. There was evidence before the court that Gladys V. was a drug addict whose three older children had been placed in foster care, and that she walked out of the hospital without the fourth child, about four hours after giving birth.
The court called the child Baby V.
Gladys H. told a social worker that she knew that the Department of Children and Family Services would take the child because they had taken her other three, and because she expected that Baby V. had tested positive for methamphetamines and amphetamines.
Gladys V. refused to tell the hospital, social workers, and later the court, the identity of Baby V’s father.
Eight months later, according to the record, Jesus H. told social workers he was probably Baby V.’s father and had just been told about the boy by the mother. He asked to visit the child and requested a paternity test and family reunification services and said he was willing to comply with all of the court’s orders.
The department denied all his requests, gave him a copy of the notice of an upcoming court hearing, and explained that the purpose of the hearing was to terminate his parental rights. The department did not inform the court he had come forward.
Jesus H. appeared at the hearing represented by attorney Eric Wexler.
When Wexler and the attorneys representing Baby V. and the department all agreed that a paternity test would be in child’s best interests, Spear declined to order the test, saying:
“Why wouldn’t you just go forward today? If you terminate the parental rights, that’s the end of him. . . . I mean are you going to, like, move [the child] into this guy’s home when he’s in a preadoptive home? What are you trying to do by doing that?”
Spear also said, “What if he’s the father? Then we’re going to offer him [reunification services]?”
After the lawyers argued that the service by publication on Jesus H. was defective, Spear continued the hearing, saying:
“Dad’s advised that the hearing is going over to November 28th. Court at that time will be terminating parental rights. The baby’s been with a family that wants to adopt him. They have a home study to adopt him. Given that this is child four on this case, I can’t find that it would be in the child’s best interest to even test to see if you are the father. I don’t think you are.”
‘`Difficult to Understand’
Vogel, writing for the Court of Appeal, said Spear’s comments were “difficult to understand because Jesus had nothing at all to do with Gladys’s other children (the record is clear that he is not their father). The court’s last comment — ‘I don’t think you are [the child’s father]’— is equally odd because there is nothing at all to suggest that Jesus is not the baby’s biological father.”
“We can only assume that the court was confused and believed that Jesus was somehow the father of the mother’s other children, which he was not, and believed that Jesus did not care about Baby V. because he had not visited the child (when in fact Jesus had wanted to visit but was prevented from doing so by the Department).”
The appellate court ordered that the case be remanded to a judge other than Spear. The court also ruled that if Jesus H. is the father, and if further findings show that he came forward immediately upon learning of the child’s existence and is not unfit, he is entitled to reunification services and visitation.
“It bears noting that a more thoughtful approach to Jesus’s requests, whatever the outcome of the paternity test, could probably have saved the child, the prospective adoptive parents, and Jesus a lot of heartache, not to mention the better part of a year wasted before these proceedings are properly resolved.”
Lisa A. DiGrazia, who represented Jesus H. on appeal, told the MetNews that she was pleased the court recognized her client’s rights. Spear said she could not comment on pending cases.
The case is In re Baby Boy V., 06 S.O.S. 3276.
Copyright 2006, Metropolitan News Company