DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

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Handbook 9: Court Related Issues
9-2 Paternity Issues in Juvenile Court
Court Related Issues
9-2  Paternity Issues in Juvenile Court
Reference Points
Overview
Legal Mandate
Categories and Definitions of Fathers
Key Investigation Questions for Social Workers to Ask in Determining Paternity
Potential Sources of Information

Who Is Entitled to What at Juvenile Dependency Hearings

Who Is Not Entitled to Family Reunification Services



Reference Points
Effective Date: TBA
Last Updated: 12/31/05
 Legal Basis:
Popup Window Welfare and Institutions Code (WIC) § 316.2
Popup Window Family Code § 7540
Popup Window Family Code § 7611(A) – (C) and 7611.5
Popup Window Family Code § 7573
Popup Window Family Code § 7551-7
Popup Window WIC § 361.5(a)
bullet

Legal Decisions

     bulletIn re Liam L. (2000) 84 Cal.App.4th 739
     bulletIn re Zacharia D. (1993) 6 Cal. 4th 435
     bulletIn re Paul H. (2003) 111 CA4 753
     bulletIn re Kelsey S. (1992) 1 Cal. 4th 816
     bulletIn re Charles S. (1985) 168 Cal.App.3d 151
     bulletIn re Jodi B. (1991) 227 Cal.App.3d 1322
     bulletIn re Albert B. (1989) 215 Cal.App.3d 361
     bulletIn re Jody R. (1990) 218 Cal.App.3d 1615
     bulletIn re Nicholas H. (2002) 28 C4th 56
     bulletIn re Jesusa V. (2003) 32 C4th 588
     bulletIn re Karen C. (2002) 101 CA 4th 932
     bulletIn re Salvador M. (2003) 111 CA4 1353


Overview  

The issue of paternity is important in juvenile court proceedings because:

  1. A paternity finding determines who is entitled to:

    a. Receive notice
    b. Attend hearings
    c. Receive appointed counsel
    d. Receive copies of court reports
    e. Request visitation with the child
    f. Request custody of the child
    g. Receive reunification services
    h. Request placement with relatives
    i. Receive notice of the § 366.26 selection and

        implementation hearing
    j. Invoke the provisions of the Indian Child Welfare Act

       (ICWA)

  2. Concurrent planning law requires the social worker to consider paternity immediately at the detention hearing. (WIC § 316.2)
     
  3. Failure to address paternity early in the case may delay the social worker’s ability to obtain permanency for the child later in the case.
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Legal Mandate   At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers. (WIC § 316.2)
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Categories and Definitions of Fathers  

The four categories of fathers include:

  1. Presumed Fathers
    • Conclusive
    • Rebuttable

  2. Natural/Biological Fathers

  3. Legal Fathers

  4. Alleged Natural Fathers

The definition of each of these categories is:

  1. Presumed Father
    • Conclusive
      The child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (Family Code § 7540)

    • Rebuttable Presumptions [Family Code § 7611(A) – (C)]
      • Child is born during marriage or within 300 days of termination of marriage (parents NOT cohabiting).
      • Attempted marriage prior to child’s birth.
      • Marriage or attempted marriage after child’s birth PLUS:
        • named as father on child’s birth certificate or written promise to pay support.
        • Receives the child into his home and openly holds the child out as his natural child.

    Note: The presumptions of section 7611 do NOT apply if:

    1. The child was conceived as the result of rape (Penal Code section 261) and the father was convicted of that violation, or
    2. The child was conceived as the result of statutory rape (Penal Code section 261.5, the father was convicted of that violation, mother was under age 15, and father was 21 or older at time of conception. (Family Code section 7611.5.)

    • Another Presumption:

      In re Kelsey S. (1992) 1 Cal. 4th 816-
      Sufficient and timely demonstration of full commitment to parental responsibilities prior to/following birth creates presumption of paternity.

    • Voluntary Declaration

    A completed voluntary declaration of paternity…filed with the Department of Child Support Services…shall have the same force and effect as a judgment for paternity by a court of competent jurisdiction . . . [and] shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support. (Family Code § 7573)
    ? A man who establishes paternity by a voluntary declaration (also known as a “POP” form – parental opportunity program) is entitled to presumed father status. See In re Liam L. (2000) 84 Cal.App.4th 739



  2. Natural (Biological) Father

    A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status. In re Zacharia D. (1993) 6 Cal.4th 435 (Family Code §§ 7551-7557)



  3. Legal Father

    A man can be established as a legal father by a:

    • Family Court Finding
    • Juvenile Court Finding
    • Child Support Action
    • Voluntary Declaration of Paternity


  4. Alleged Natural Father

An “alleged” father refers to a man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status. In re Zacharia D. (1993) 6 C4 435, 449, fn. 15.

Due process for an alleged father requires only that the alleged father be given notice and "an opportunity to appear and assert a position and attempt to change his paternity status. In re Paul H. (2003) 111 CA4 753

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Key Investigation Questions for Social Workers to Ask  
  1. What man or men does the mother name as father of the child?
  2. Who is listed on the child’s birth certificate as father?
  3. Did the father sign a voluntary declaration of paternity at the hospital? If so, was it filed with the State Department of Social Services?
  4. Was the mother married at the time the child was born? If so, to whom?
  5. Has the mother ever been married? If so when and where?
  6. Were any marriages of the mother terminated by divorce?
  7. Has the court ever ordered any man to pay support for the child?
  8. Have you ever gone to court or received any legal papers about this child?
  9. Has the mother ever applied for AFDC for the child? Who was listed on the application as the father?
  10. Has the father ever lived with the child? When and where?
  11. Has the father ever provided food, clothing, shelter, or financial assistance for the child?
  12. Did the mother have sexual relations with any other men around the time of the child’s conception?
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Potential Sources of Information  

The following persons or records should be contacted or reviewed for information. 

  • Mother
  • Each candidate for paternity
  • Child’s birth certificate
  • Social Services eligibility records
  • DA Family Support records
  • Family Court records
  • State DSS/Vital Statistics records for voluntary declaration
  • Juvenile Delinquency court records
  • Prior Juvenile Dependency files
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Who Is Entitled to What at Juvenile Dependency Hearings  
  Presumed

Natural

(Bio)

Legal Alleged Natural
Who gets Notice of Juvenile Dependency Hearings?
Who can attend JD Hearings?

Only to establish paternity

Who gets an attorney?
 
Who gets court reports?
 
Who can request visits?
 
Who can see custody?
 
Who gets Family Reunification (FR) services? ** **  
Who must receive FR services, in addition to the
Mother and Legal Guardian?
     
Who may receive services (discretionary)?    
Who may request placement with a relative?  
Does the Indian Child Welfare Act (ICWA) apply? Not unless he is also the natural father Not unless he is also the natural father  

** FR services to a Natural Father or Legal Father is discretionary. [(WIC § 361.5(a)]

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Who Is Not Entitled to Receive Family Reunification Services  
  1. De facto Parents - In re Charles S. (1985) 168 Cal.App.3d 151
  2. Stepparents - In re Jodi B. (1991) 227 Cal.App.3d 1322
  3. Grandparents - In re Albert B. (1989) 215 Cal.App.3d 361
  4. Live-in Companions - In re Jody R. (1990) 218 Cal.App.3d 1615
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