In re Alexander P. , 4 Cal. App. 5th 475 ( 2016 )

Filed 10/21/16 opinion on rehearing
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re ALEXANDER P., a Person Coming
Under the Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES A146040
AGENCY,
(San Francisco City & County
Plaintiff and Respondent, Super. Ct. No. JD15-3101)
v.
HEIDI S., et al.,
Defendants and Appellants;
MICHAEL P., et al.,
Appellants.
In re ALEXANDER P., a Person Coming
Under the Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES A146595
AGENCY,
(San Francisco City & County
Plaintiff and Respondent, Super. Ct. No. JD15-3101)
v.
HEIDI S., et al.,
Defendants;
MICHAEL P.,
Appellant.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I.B. and II.D.
Alexander P. (minor), then three years old, became the subject of a dependency
petition after his stepfather, Donald Q. (Donald) assaulted his mother, appellant Heidi S.
(Mother), in the minor’s presence. At the time of the filing of the dependency petition,
the minor’s paternity was the subject of separate family court proceedings filed by two
other men, appellants Michael P. (Michael) and Joel D. (Joel). Joel is the minor’s
biological father, while Michael is the man with whom Mother was living at the time of
the minor’s birth. Two weeks after the filing of the dependency petition, the family court
ruled that both Michael and Joel qualify as presumed parents and designated both under
Family Code1 section 7612, subdivision (c), which authorizes multiple presumed parents.
When the juvenile court inquired into the minor’s paternity during the initial
stages of this dependency proceeding, all three men sought to be declared the minor’s
presumed parent. Michael and Joel based their claims on the family court’s order, while
Donald provided evidence that he had, as a practical matter, served in the role of the
minor’s father for the 20 months prior to his assault on Mother. Considering itself bound
by the family court’s order, the juvenile court found both Michael and Joel to be
presumed parents. The court also found that Donald satisfied the requirements for
presumed parent status and designated him as well, pursuant to 7612, subdivision (c).
Michael and the minor have appealed the designation of Donald as a presumed
parent, while several of the parties have challenged Michael’s designation. In addition,
Michael has challenged the juvenile court’s subsequent denial to him of visitation with
the minor.
We conclude that the juvenile court erred in finding Michael to be a presumed
parent. Because Welfare and Institutions Code section 316.2 grants exclusive jurisdiction
over paternity issues to the juvenile court upon the filing of a dependency petition, the
family court order on which the juvenile court relied, issued subsequent to the filing, was
void. We vacate the juvenile court’s designation of Michael as a presumed parent and
remand to the juvenile court for an independent determination of his request for
1
All statutory references are to the Family Code unless otherwise specified.
2
presumed parent status. We find no error in the designation of Donald as a presumed
parent, which was supported by substantial evidence. Finally, we vacate the juvenile
court’s order denying visitation to Michael and remand for reconsideration of his request
in the event the court designates Michael as a presumed parent.
I. BACKGROUND
A. Presumed Parent Proceedings
The minor was conceived during an intermittent, three-year relationship between
Mother and Michael, but neither believed Michael to be the child’s biological father.
When Mother informed Joel, whom she believed to be the father, of her pregnancy, Joel
told her he was not ready for fatherhood and expressed concern about her decision not to
abort the fetus. Mother thereafter ceased communication with Joel for well over a year.
Notwithstanding Michael’s belief he was not the child’s father, he remained in the
relationship with Mother throughout her pregnancy, intending to raise the child as his
own. Michael was present at the birth in February 2012, executed a voluntary declaration
of paternity, and was identified as the minor’s father on the birth certificate. During
much of the first year of the minor’s life, Michael lived with Mother, held himself out as
the minor’s father, and was characterized by Mother as “ ‘very attentive’ ” to the infant.
From before the minor’s birth, the relationship between Mother and Michael was
characterized by oppressive domestic violence. In January 2013, prior to the minor’s first
birthday, a criminal protective order issued to protect Mother from Michael. He was
arrested for a separate act of domestic violence against her two months later and
eventually suffered a misdemeanor conviction. A year later, in April 2014, another
restraining order was granted in favor of Mother against Michael. She remained fearful
of him long after.
At the time the first restraining order was entered, Michael filed a petition for
custody of the minor. He and Mother eventually entered into a mediated stipulation
providing for joint legal and physical custody and allowing Michael substantial visitation
with the minor. But after entry of the April 2014 restraining order, Mother was granted
sole legal and physical custody of the minor, and Michael was restricted to twice weekly
3
supervised visits. Reports of the supervised visits found a loving and appropriate
relationship between the minor and Michael, except Michael badgered the minor to refer
to him as “Daddy.” As will be discussed below, the supervised visits were later
terminated by the family court.
In the meantime, in late 2013, Joel was given an opportunity to become involved
in the minor’s life and submitted to a DNA test, which confirmed he is the minor’s
biological father. Beginning in September 2013 and continuing to the present day,
Mother has permitted Joel to have weekly visits with the minor, during which they have
spent time together reading, talking, exploring, and playing in the park. In April 2014,
Joel filed an action to establish his paternity.
In July 2013, Mother began living with Donald, whom she had known since high
school. They married in August 2014. Within their household, it is acknowledged that
Donald is not the minor’s biological father, and Donald respects Joel’s role in the minor’s
life. Nonetheless, Donald has assumed “the day-to-day physical and emotional
responsibilities” of a father since he began living with Mother and the minor. Donald
changed the minor’s diapers and participated in his potty training, feeds and clothes him,
puts him to sleep, and engages in typical parent-child play activities. Donald believes he
treats the minor as his own child and is in turn regarded by the minor “as his
psychological parent.” By early 2015, the minor alternated between referring to Donald
as “Don” and “Daddy,” without coaching from Donald. Donald has introduced the minor
to his extended family, who “have embraced [the minor] and accepted him into our
family,” and the minor has become “the center of attention at [Donald’s] family
functions.” In a report prepared for the family court around June 2014, appointed counsel
for the minor found the minor to be “most comfortable” in the care of Donald, rather than
Michael or Joel.2
2
Michael contends the juvenile court could not consider this report because
“counsel’s statements are not evidence.” While this is true when an attorney is acting in
the role of an advocate, the report in question was rendered by counsel acting in the role
of a witness. (See Rules Prof. Conduct, rule 5-200(E).) In any event, the juvenile court
4
Although Michael was not a party to Joel’s paternity proceeding and Joel was not
a party to Michael’s custody proceeding, the family court conducted a joint hearing in the
two proceedings on August 14, 2014. The joint hearing addressed two separate motions:
a motion by Michael to compel Mother’s compliance with the order granting him
supervised visitation and Joel’s motion for an order of paternity. Mother and Joel
appeared in pro. per. for the hearing, but Michael did not attend because of a
misunderstanding with respect to scheduling. Following the hearing, in a document
entitled “Findings and Order After Hearing” (August 2014 order), the family court set
aside Michael’s voluntary declaration of paternity, denied his claim of presumed parent
status, vacated his visitation order, declared Joel to be a presumed parent, and awarded
joint legal custody to Mother and Joel. The August 2014 order was filed in Michael’s
custody proceeding. The family court also prepared a document entitled “Judgment”
(August 2014 judgment), which was entered in Joel’s paternity proceeding. The
August 2014 judgment is a preprinted form, to which the court attached the August 2014
order.3 With respect to a line item in the preprinted judgment stating “THE COURT
FURTHER ORDERS,” the family court stated, “See [the August 2014 order].”
Less than a month later, Michael filed a request to set aside the orders entered in
his absence and declare him to be the minor’s legal father. Although Michael’s request
was filed in September 2014, the family court did not conduct an evidentiary hearing on
the request until March 6, 2015. Following that hearing, in an order entered on
March 17, 2015 (March 2015 order), the court vacated most of the orders entered after
the August 2014 hearing and took “the issue of paternity for both [Michael] and [Joel]
is entitled to consider certain types of hearsay evidence (Welf. & Inst. Code, § 355), and
Michael fails to demonstrate he objected to the consideration of this report below (In re
E.B. (2010) 184 Cal. App. 4th 568, 577).
3
The docket sheets for these two proceedings, which are included in the appellate
record, contain entries for the August 2014 order and the August 2014 judgment, but
neither document is a part of the appellate record. We have obtained copies of both
documents from the superior court and take judicial notice of them.
5
under submission.” The March 2015 order, however, expressly preserved the finding of
presumed parent status for Joel and the suspension of Michael’s visitation.4
Prior to any further ruling by the family court, on March 30, 2015, the San
Francisco Human Services Agency (Agency) filed a dependency petition in connection
with the minor. The petition alleged the minor, then three years old, was at risk of harm
due to domestic violence in Mother’s home. (Welf. & Inst. Code, § 300, subd. (b)(1).)
According to the Agency’s jurisdictional report, Donald, while intoxicated, had attacked
Mother. With the minor watching from a hallway, Donald climbed on top of Mother and
began striking her face, pulling her hair, and attempting to choke her. In tears, the minor
rushed forward and attempted to pull Donald off. Donald was later arrested on domestic
violence charges, and a restraining order was entered. The petition alleged this was only
the most recent of five separate incidents of domestic violence by Donald against Mother.
Two weeks after the dependency petition was filed, on April 15, the family court
consolidated the proceedings filed by Michael and Joel, and issued a statement of
decision, findings and order, and two judgments, finding both Joel and Michael to be
presumed parents of the minor.5 Although recognizing that Michael’s voluntary
declaration of paternity could be set aside, the family court declined to do so because the
minor “has formed an attachment and strong relationship with [Michael] in his first years
of life” and Michael “seeks to continue his relationship with the child,” which the court
found to be in the minor’s “best interest.” The court found that Joel was the minor’s
biological father and noted that through weekly visits Joel had formed a companionable
relationship with the minor. The court declined to choose between them, finding the
minor would suffer detriment if either was not declared to be a presumed parent.
(§ 7612, subd. (c).) The court also reinstated Michael’s supervised visitation and entered
4
The Agency has filed a request to take judicial notice of the March 2015 order,
which is not included in the appellate record. We grant that request.
5
Only the family court’s statement of decision is included in our appellate record.
We have obtained a copy of the findings and order and the two judgments from the
superior court and take judicial notice of them. The four rulings together will be referred
to as the family court’s “April 2015 order.”
6
judgments designating both men as the minor’s father. So far as we are aware, none of
the family court rulings were appealed.
Soon thereafter, the juvenile court scheduled a hearing in the dependency
proceedings “for status of Parentage.” Prior to the hearing, Michael, Joel, and Donald all
filed requests to be declared the minor’s father. Michael also sought an order of
visitation. In support of his request for presumed parent status, Donald submitted a
declaration describing his relationship with the minor and stating that although he was
required by a domestic violence restraining order to live apart from Mother and the
minor, he intended to reunite with them when permitted to do so and to “remain[] [the
minor’s] father for the rest of his life.”
On August 17, 2015, the juvenile court found Michael and Joel to be presumed
parents on the basis of the family court’s April 2015 order, deeming itself bound by that
order. The court also found Donald to satisfy the requirements for presumed parent
status and declared him to be the minor’s third presumed parent, concluding it would be
detrimental to the minor “to limit this child’s parentage to mother, [Joel], and [Michael].”
The court deferred a ruling on Michael’s request for visitation, directing the parties to
address it at a hearing scheduled for two days later.
At that hearing, the parties stipulated to an amended jurisdictional allegation. The
juvenile court declared the minor to be a dependent and permitted him to remain with
Mother, with the Agency directed to provide family maintenance services. The court also
arranged to schedule separate trials on the issue of visitation for Michael and Donald and,
in the meantime, directed both of them to mediation on the issue.
B. Michael’s Visitation
In September 2015, the Agency filed an interim report recommending a denial of
visitation to Michael.6 The recommendation appears to have been based on an interview
6
Because we have consolidated Michael’s two appeals, we include a description
of the events following the juvenile court’s August hearings, since these later events are
relevant to Michael’s appeal of the denial of visitation. We accept Michael’s contention
7
with Mother, who told the Agency that Michael had, at one time, stalked her and
threatened to kidnap the minor. Mother also claimed to have a video recording of
Michael shaking the minor and yelling at him, although she did not produce the video to
the Agency, and she believed Michael did not have a relationship with the minor because
he had not been permitted visitation for an extended period of time. The Agency’s
recommendation also purported to be “based off of a detriment finding made in Family
Court,” an apparent misunderstanding of the family court’s ruling, which found, to the
contrary, that the minor would suffer detriment if Michael was denied contact with him.
An addendum report filed a week later related the opinion of a consulting psychologist
that it would be detrimental to the minor to visit with Michael, due to the effects on the
minor of Michael’s past domestic violence toward Mother. The psychologist reasoned
the minor’s exposure to domestic violence committed against Mother during the minor’s
first six months of life caused high levels of stress, resulting in a “toxic effect” on the
minor’s brain. For this reason, the psychologist believed the minor would continue to
associate Michael with “ongoing danger” to Mother.
A contested hearing on Michael’s visitation was held on October 19, 2015. Three
social workers testified in support of the Agency’s recommendation to deny visitation to
Michael. The first two social workers largely reiterated the matters disclosed in the
Agency’s reports recommending denial of visitation. The third social worker had
obtained the opinion of the consulting psychologist, summarized in the addendum report.
She testified the opinion was rendered in the course of a 55-minute meeting, which also
addressed visitation by Donald. In making the recommendation, the psychologist had
reviewed none of the documents prepared in connection with the matter, such as the
reports from Michael’s visits with the minor and the family court decision, and had not
talked to any of the parties, relying entirely on the verbal account of the situation
provided by the social workers present at the meeting. The psychologist was out of the
that the facts developed at the hearings should not be considered in evaluating the validity
of the juvenile court’s presumed father determinations.
8
country at the time of the hearing and did not testify. Mother also testified, reiterating the
matters discussed in her interview with the Agency.
The juvenile court denied visitation to Michael, finding by clear and convincing
evidence, based on the opinion of the consulting psychologist, that visitation with
Michael would be detrimental to the minor. In effect, the court concluded it was bound
by the psychologist’s opinion because Michael had not offered expert testimony to refute
the opinion and noted the psychologist’s opinion was “the only evidence I have in regards
to the reason for the Agency’s not going forward with visitation.”
II. DISCUSSION
Michael, Mother, Joel, and the minor have each appealed certain of the juvenile
court’s parentage rulings. Michael and the minor contend the court erred in finding
Donald a presumed parent, while Mother, Joel, and the minor contend the court erred in
finding Michael to be a presumed parent. In addition, Michael filed a separate notice of
appeal from the court’s order denying him visitation. We have consolidated all appeals
for argument and decision.
A. Presumed Parentage Generally
“ ‘Presumed father status is governed by section 7611, which sets out several
rebuttable presumptions under which a man may qualify for this status, generally by
marrying or attempting to marry the child’s mother or by publicly acknowledging
paternity and receiving the child into his home. [Citations.] Biological fatherhood does
not, in and of itself, qualify a man for presumed father status under section 7611. On the
contrary, presumed father status is based on the familial relationship between the man
and child, rather than any biological connection.” (In re J.L. (2008) 159 Cal. App. 4th
1010, 1018 (J.L.).)7 The purpose of presumed parentage, in the dependency context, is
7
Since our decision in J.L., section 7611 has been amended to refer to a presumed
“parent” rather than “father,” recognizing that the second parent of a child may be female
as well as male. (Stats. 2013, ch. 510, § 3; e.g., Elisa B. v. Superior Court (2005)
37 Cal. 4th 108, 125 [female domestic partner of child’s biological mother may qualify as
a presumed parent under section 7611].)
9
“[t]o identify [persons] who, by reason of their parenting relationship, are entitled to seek
reunification services and custody.” (In re Jerry P. (2002) 95 Cal. App. 4th 793, 802
(Jerry P).) The “elevated status” of presumed parenthood is intended to “ ‘distinguish
those who have demonstrated a commitment to the child regardless of biology.’ ”
(Martinez v. Vaziri (2016) 246 Cal. App. 4th 373, 377 (Martinez).)
If the child’s biological mother and the potential presumed parent were not
married or did not attempt to marry around the time of the child’s birth, presumed parent
status must be demonstrated through section 7611, subdivision (d), which requires, “The
presumed parent receives the child into his or her home and openly holds out the child as
his or her natural child.” In general terms, the requirements of subdivision (d) are
intended to describe a person who has established a “parent-child” or “familial”
relationship with the child. (Jason P. v. Danielle S. (2014) 226 Cal. App. 4th 167, 178.)
To qualify under subdivision (d), a person must have a “fully developed parental
relationship” with the child. (R.M. v. T.A. (2015) 233 Cal. App. 4th 760, 776, italics
omitted (R.M.).) It is not enough to demonstrate “only a caretaking role and/or romantic
involvement with a child’s parent.” (Id. at p. 777.) Rather, the presumed parent must
demonstrate “ ‘a full commitment to his [or her] paternal responsibilities—emotional,
financial, and otherwise.’ ” (Jerry P., supra, 95 Cal.App.4th at pp. 801–802, fn.
omitted.) While the juvenile court may consider a wide range of factors in making a
presumed parent determination, as appropriate to the circumstances (see, e.g., In re T.R.
(2005) 132 Cal. App. 4th 1202, 1211 (T.R.)), the core issues are the person’s established
relationship with and demonstrated commitment to the child. (E.g., Martinez, supra,
246 Cal.App.4th at pp. 384–385 [“ ‘ “[T]he premise behind the category of presumed
[parent] is that an individual . . . has demonstrated a commitment to the child and the
child’s welfare . . . .” ’ ”]; In re D.M. (2012) 210 Cal. App. 4th 541, 553 [presumed parent
must be “ ‘someone who has demonstrated an abiding commitment to the child and the
child’s well-being’ ” and has “ ‘entered into a familial relationship with the child’ ”];
Charisma R. v. Kristina S. (2009) 175 Cal. App. 4th 361, 377, disapproved on other
10
grounds in Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 532, fn. 7 [requires demonstrated
“ ‘commitment’ ”].)
In J.L., we noted, “[o]ccasionally the complicated pattern of human relations gives
rise to more than one legitimate claimant to presumed father status, and the juvenile court
must resolve the competing claims. . . . ‘[A]lthough more than one individual may fulfill
the statutory criteria that give rise to a presumption of paternity, “there can be only one
presumed father.” ’ ” (J.L., supra, 159 Cal.App.4th at p. 1019.) Human relations have
become no less complicated since 2008, but it is no longer true that a child is permitted
only one presumed parent. In 2013, the Legislature amended section 7612, which
governs the resolution of presumed parent claims, to permit the designation of more than
one presumed parent. (Stats. 2013, ch. 564, § 6.) Prior to the amendment, section 7612
stated, “ ‘(a) . . . a presumption under Section 7611 is a rebuttable presumption affecting
the burden of proof and may be rebutted in an appropriate action only by clear and
convincing evidence. [¶] (b) If two or more presumptions arise under Section 7611 which
conflict with each other, the presumption which on the facts is founded on the weightier
considerations of policy and logic controls.’ ” (J.L., at p. 1019.) Although this language
remains in the statute, the amendment inserted a new subdivision (c) that allows the court
to declare more than one presumed parent if it concludes “recognizing only two parents
would be detrimental to the child.”8 The allowance of more than one presumed parent
under subdivision (c) is intended to be reserved for “ ‘rare cases’ where a child truly has
more than two parents.” (In re Donovan L. (2016) 244 Cal. App. 4th 1075, 1087
(Donovan L.).)
8
Section 7612, subdivision (c) provides, as pertinent: “In an appropriate action, a
court may find that more than two persons with a claim to parentage under this division
are parents if the court finds that recognizing only two parents would be detrimental to
the child. In determining detriment to the child, the court shall consider all relevant
factors, including, but not limited to, the harm of removing the child from a stable
placement with a parent who has fulfilled the child’s physical needs and the child’s
psychological needs for care and affection, and who has assumed that role for a
substantial period of time.”
11
B. Presumed Parent Status of Michael and Joel
Joel, Mother, and the minor have all appealed the designation of Michael as a
presumed parent, arguing the juvenile court erred in concluding it was bound by the
family court’s April 2015 order because that court, by the time it ruled, no longer had
subject matter jurisdiction over the issue of paternity. We agree.9
Section 7630 permits certain persons with a specified relationship to a child to
bring an action in family court to determine the existence of presumed parent status under
section 7611. (§ 7630, subds. (a)–(c).) Once a dependency petition has been filed,
however, Welfare and Institutions Code section 316.2 vests the court hearing the
dependency petition with exclusive responsibility for determining the identity of
presumed parents, stating, “After a petition has been filed to declare a child a dependent
of the court, and until the time that the petition is dismissed, . . . the juvenile court which
has jurisdiction of the dependency action shall have exclusive jurisdiction to hear an
action filed under Section 7630 or 7631 of the Family Code.”10 (Welf. & Inst. Code,
§ 316.2, subd. (e).) This grant of jurisdiction is confirmed by California Rules of Court,
rule 5.510(c)(1)(B), which similarly vests exclusive jurisdiction in the juvenile court over
“[a]ll issues and actions regarding the parentage of the child under . . . Family Code
section 7630.” In furtherance of this jurisdictional grant, the juvenile court is required to
conduct an inquiry into the identity of potential assumed and alleged fathers immediately
upon the filing of a dependency petition.11 (Welf. & Inst. Code, § 316.2, subd. (a).)
9
Michael argues the parties have forfeited this issue by failing to raise it below.
While the parties opposed the juvenile court’s adoption of the family court ruling
regarding Michael, they failed to raise the specific issue of lack of jurisdiction in the
family court. Because the family court’s jurisdiction is a significant issue of law going to
the legal foundation for the juvenile court’s order, we exercise our discretion to consider
it. (See, e.g., In re Nickolas T. (2013) 217 Cal. App. 4th 1492, 1500–1501.)
10
Section 7631 was repealed effective January 1, 2011 (Stats. 2010, ch. 588, § 2),
notwithstanding the continued reference in Welfare and Institutions Code section 316.2.
11
Welfare and Institutions Code section 316.2, subdivision (a) requires the
fatherhood inquiry to be made at the detention hearing “or as soon thereafter as
12
The juvenile court’s exclusive jurisdiction over parentage issues, once a Welfare
and Institutions Code section 300 dependency petition has been filed, was recognized by
our Supreme Court in In re Jesusa V. (2004) 32 Cal. 4th 588, in which the court noted:
“The juvenile court where the dependency petition is pending shall have exclusive
jurisdiction to hear that action from the time the petition is filed until the petition is
dismissed, the dependency is terminated, or parental rights are terminated. [Citation.]
Alternatively, the juvenile court itself ‘may make such a determination’ even if no action
is filed under Family Code section 7630. [Citation.] . . . [¶] . . . Indeed, subdivision (e) of
Welfare and Institutions Code section 316.2 endows the juvenile court with exclusive
jurisdiction to hear the paternity action at any time while the petition is pending.” (Id. at
p. 620.) As the court explained, “inasmuch as a dependency action could eventually
result in the termination of parental rights, a court needs first to know the identities of the
parents. The legal parents must be identified so that they may receive notice of the
hearing; be provided counsel, if necessary; and be accorded a meaningful opportunity to
be heard.” (Ibid.; see similarly In re Kaylee H. (2012) 205 Cal. App. 4th 92, 102 [“Once a
petition has been filed under [Welfare and Institutions Code] section 300, the juvenile
court has exclusive jurisdiction of . . . all issues and actions regarding paternity of the
child.”].) The grant of exclusive jurisdiction “ensure[s] the predominance of the
dependency laws in the event an action to establish a parent-child relationship action
converges with a dependency proceeding.” (In re Joshua R. (2002) 104 Cal. App. 4th
1020, 1027–1028.) The juvenile court is similarly granted “ ‘sole and exclusive
jurisdiction’ ” over issues of custody, visitation, and guardianship upon filing of a
dependency petition. (A.H. v. Superior Court (2013) 219 Cal. App. 4th 1379, 1388–1389;
Welf. & Inst. Code, § 304.)
The necessary effect of a grant of exclusive subject matter jurisdiction in one
judicial body is to divest all other bodies of such jurisdiction. (El Rancho Unified School
practicable.” By statute, the detention hearing must occur “before the expiration of the
next judicial day” after filing of the petition. (Welf. & Inst. Code, § 315.)
13
Dist. v. National Education Assn. (1983) 33 Cal. 3d 946, 952–953, 961; Wilson v.
Southern California Edison Co. (2015) 234 Cal. App. 4th 123, 143.) Accordingly, once a
juvenile court acquires exclusive jurisdiction over parentage issues by the filing of a
dependency petition, every other court is simultaneously divested of any jurisdiction it
might otherwise have over such issues. For that reason, the family court hearing Joel’s
and Michael’s consolidated paternity/custody actions was divested of jurisdiction over
paternity issues as of March 30, 2015, when this dependency proceeding was
commenced. As a result, by the time the family court issued its April 2015 order on
presumed parent status, it no longer had subject matter jurisdiction over the minor’s
paternity and visitation. The family court’s rulings on these issues were therefore of no
legal effect, and the juvenile court’s conclusion that it was required to adopt the family
court’s findings was erroneous. (Wilson, at p. 143 [judgment entered by court lacking
subject matter jurisdiction is void]; In re Antoinette (2002) 104 Cal. App. 4th 1401, 1409–
1410 [when a court acts without subject matter jurisdiction, the action is void].) Because
the juvenile court stated no ground for its presumed parent finding as to Michael other
than the supposed binding effect of the family court’s order, we must vacate the juvenile
court’s finding of presumed parent status for Michael and remand to the juvenile court for
resolution of his request independent of the family court’s ruling.12
Michael argues the juvenile court was bound by the family court’s judgment
finding him to be a presumed father under the doctrines of collateral estoppel and res
judicata. Both of those doctrines are premised on the assumption that the judgment for
which preclusive effect is sought was rendered by a court of competent jurisdiction.
Judgments that are void for lack of “ ‘jurisdiction in the fundamental sense, i.e., of the
subject matter and the parties’ ” have no preclusive effect. (People v. American
12
The juvenile court made no finding with respect to detriment if Michael were
not found to be a presumed parent (§ 7612, subd. (c)), presumably viewing itself to be
bound by the detriment finding of the family court. Should the juvenile court find on
remand that Michael qualifies as a presumed parent, it should proceed to consider the
issue of detriment under section 7612, subdivision (c), assuming there is more than one
person qualified for presumed parent status.
14
Contractors Indemnity Co. (2004) 33 Cal. 4th 653, 661; People v. Kim (2012)
212 Cal. App. 4th 117, 125 [“ ‘The doctrine of res judicata is inapplicable to void
judgments. “Obviously a judgment, though final and on the merits, has no binding force
and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject
matter or person . . . .” ’ ”].) The family court’s lack of subject matter jurisdiction at the
time its judgment was entered prevents the judgment from having preclusive effect.13
Joel and the Agency argue we need not remand for an independent consideration
of Michael’s request for presumed parent status because there is no substantial evidence
to support such a finding, but we are unwilling to address that issue before the juvenile
court has had an opportunity to do so. For the same reason, we also decline to address
the significance, if any, of Michael’s voluntary declaration of paternity. The various
issues bearing on Michael’s presumed parent status must be resolved in the first instance
by the juvenile court.
Our conclusion unavoidably calls into question the presumed parent status of Joel,
since the reasoning that requires us to vacate the finding as to Michael applies with equal
force to Joel. If the juvenile court erred in designating Michael a presumed parent on the
basis of the April 2015 order, it also erred in designating Joel. Initially, none of the
parties challenged the juvenile court’s finding that Joel is a presumed father of the minor.
After we sought supplemental briefing on the issues,14 Michael argued the juvenile
court’s order as to Joel should be vacated because “no other evidence exists in the
appellate record to support” the designation. The remaining parties contended the two
men are distinct because Joel, unlike Michael, was declared to be a presumed father in
orders and a judgment rendered by the family court at a time when it had jurisdiction over
13
Michael also argues it would be inequitable, unfair, or bad public policy to
disregard the family court’s judgment. In light of the clear statutory directive that issues
of paternity must be litigated in the context of a dependency proceeding, once the
proceeding is filed, we have no equitable discretion in the matter.
14
We not only sought supplemental briefing during our original consideration of
this matter, we also granted Joel’s petition for rehearing on the issue, which was decided
against him in our original decision.
15
the issue, in August 2014 and March 2015. Accordingly, they reason, the juvenile court’s
reliance on the April 2015 order constituted harmless error because the court would have
been bound by these earlier orders.
The doctrines of res judicata and collateral estoppel prevent the parties from
relitigating Joel’s status if the family court’s presumed parent finding had been reduced
to a “ ‘ “final judgment on the merits.” ’ ” (Boeken v. Philip Morris USA, Inc. (2010)
48 Cal. 4th 788, 797 (Boeken).) In the case of paternity proceedings, this common law
doctrine is embodied in section 7636, which states, “The judgment or order of the court
determining the existence or nonexistence of the parent and child relationship is
determinative for all purposes except for actions brought pursuant to Section 270 of the
Penal Code.” Reflecting this principle, it is commonly held that a judgment of paternity
is entitled to “res judicata effect.” (City and County of San Francisco v. Cartagena
(1995) 35 Cal. App. 4th 1061, 1065; City and County of San Francisco v. Stanley (1994)
24 Cal. App. 4th 1724, 1729 [motion to modify child support cannot reopen the issue of
paternity once a “final judgment” of paternity has been rendered].)
Given the expansive language of section 7636, we conclude the dependency court
was bound by the August 2014 judgment with respect to the issue of Joel’s presumed
parent status. By attaching a copy of the August 2014 order declaring Joel to be a
presumed parent to the August 2014 judgment, the family court effectively rendered a
judgment of presumed parent status in favor of Joel. That judgment was entered after an
evidentiary hearing and a determination by the family court on the merits of Joel’s claim
of paternity. When no appeal was taken, the judgment became final. No procedural flaw
has been cited in the proceedings that might cast doubt on the outcome or the subsequent
use of the judgment.15 Under section 7636, the judgment of paternity was therefore
15
According to the docket sheet for Joel’s paternity action, Mother and the minor
were joined as a parties. In a paternity action, a child under the age of 12, such as the
minor, must be represented by a guardian ad litem. (§ 7635, subd. (a).) While the docket
sheet does not expressly reflect the appointment of a guardian ad litem, it does contain an
order appointing counsel for the minor, who presumably served as guardian ad litem. In
any event, the minor supports Joel’s designation as a presumed parent, mooting any
16
“determinative for all purposes,” presumably including a subsequent dependency
proceeding. Accordingly, we conclude that the juvenile court’s reliance on the April
2015 order in finding Joel to be a presumed parent was harmless error because the court
was, in any event, bound by the finding of presumed parentage in the August 2014
judgment.
It is essential to our decision that no party submitted evidence suggesting the
circumstances under which Joel was found to be a presumed parent had changed since
entry of the judgment. Judgments are inevitably based on findings of fact about past
circumstances. A judgment of presumed parenthood represents a finding that, at the time
of entry of the judgment, the person qualified as a presumed parent. With respect to a
judgment of biological parenthood, this time dependence is legally irrelevant. Once a
biological parent, always a biological parent. Presumed parenthood, in contrast, is based
on the personal relationship between adult and child, and personal relationships can
change. This is of critical importance to the presumed parenthood determination of a
juvenile court, since that court must determine which person or persons stand in the
relationship of presumed parent to the child at time of the dependency proceeding.
Because a prior judgment of presumed parenthood represents a finding about a past,
rather than a present, relationship, it is binding on the juvenile court only if there is no
evidence of a change in the relationship between adult and child since entry of the
judgment. There being no such evidence here, the juvenile court had no basis for
rejecting the judgment with respect to Joel.
Michael argues the August 2014 judgment should be disregarded because the
family court, in the March 2015 order, took the issue of Joel’s paternity under
submission. It is not clear that the family court, having rendered a judgment in Joel’s
paternity action, possessed jurisdiction to reconsider its decision, as it purported to do.
(Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal. App. 4th 455, 479
procedural flaw that might have affected the enforcement of the paternity judgment with
respect to the minor.
17
[entry of judgment normally terminates court’s jurisdiction to rule on the merits of a
case].) In any event, while the court purported to take the issue of Joel’s paternity under
submission, it did not vacate or otherwise withdraw its finding that Joel was a presumed
parent. On the contrary, the court expressly left that finding intact in the March 2015
order. As a result, even if the court had jurisdiction to modify the judgment of paternity,
it did not do so prior to losing jurisdiction over the matter.16 Michael also contends the
August 2014 judgment is not binding because he was not a party to Joel’s paternity
proceeding, as required by the doctrine of collateral estoppel. (Boeken, supra, 48 Cal.4th
at p. 797.) Whatever the common law requirements of collateral estoppel in these
circumstances, section 7636 does not require an identity of parties to make a paternity
judgment “determinative for all purposes.” Michael also argues a family law judgment
should not be binding in dependency proceedings because “the issues in a family law
case [are] never identical to those in a juvenile case,” citing In re Travis C. (1991)
233 Cal. App. 3d 492, 498–503. Travis C. is of no help because, in that case, the court
declined to grant collateral estoppel effect to a prior determination because it was not a
“final order or judgment.” (Id. at p. 499.) As discussed above, the family court’s
paternity judgment as to Joel was a final judgment. In any event, the issue of presumed
parent status is governed by the same statute, section 7611, in both family and juvenile
courts. (In re H.R. (2016) 245 Cal. App. 4th 1277, 1283 [dependency proceedings];
Kevin Q. v. Lauren W. (2009) 175 Cal. App. 4th 1119, 1130–1131 [paternity
proceedings].)17
16
For this reason, we deny Michael’s request for judicial notice as to family court
minutes and a restraining order. These materials, which purport to demonstrate the
family court’s intent, are not relevant to our determination.
17
Michael also contends he would be denied his rights under the voluntary
declaration of paternity without due process if Joel’s paternity judgment were found
binding on the juvenile court. Michael will, however, have a full opportunity to litigate
the significance of his voluntary declaration upon remand in the dependency proceedings.
18
C. Designation of Donald As a Presumed Parent
Michael and the minor argue the juvenile court’s order designating Donald a
presumed parent was not supported by substantial evidence. A person seeking presumed
parent status has the burden of demonstrating compliance with the statutory requirements
by a preponderance of the evidence. (R.M., supra, 233 Cal. App. 4th 760, 774.) In turn,
we review the juvenile court’s finding under the substantial evidence standard. (Id. at
p. 780.) “We view the evidence in the light most favorable to the ruling, giving it the
benefit of every reasonable inference and resolving all conflicts in support of the
judgment. [Citation.] We defer to the trial court’s credibility resolutions and do not
reweigh the evidence. [Citation.] If there is substantial evidence to support the ruling, it
will not be disturbed on appeal even if the record can also support a different ruling.”
(Ibid.)
1. Donald’s Qualification for Presumed Parent Status
We find no merit in the argument that Donald failed to demonstrate an entitlement
to presumed father status.18 It is undisputed that Donald can qualify as a presumed parent
only under subdivision (d) of section 7611, which requires that the putative presumed
parent “receives the child into his or her home and openly holds out the child as his or her
natural child.” As discussed above, this subdivision requires the person seeking
presumed parent status to demonstrate an established parental relationship with the minor
and commitment to the minor’s well-being. The evidence before the juvenile court
demonstrated that the minor and Mother lived with Donald from July 2013, until Donald
was removed from the home by a restraining order in March 2015. During this time,
Donald acted as the minor’s live-in father, taking on the various duties and
18
Donald raises a series of procedural objections to the arguments of Michael and
the minor, contending they lack standing to raise the issues or have forfeited their
arguments by not raising them below. We have considered Donald’s contentions and
satisfied ourselves that Michael, at least, has standing and has not forfeited a challenge to
Donald’s designation as a presumed father. Because we find no merit in the arguments
raised by Michael and the minor with respect to Donald, it is unnecessary to discuss the
issues of standing and forfeiture in detail.
19
responsibilities demanded of an infant’s parent. According to Donald, he treated the
minor as though he were his own child, and the minor had begun to refer to him as
“Daddy.” In June 2014, the minor was found to be most comfortable in Donald’s care,
and there is no reason to believe that situation changed through further contact. Although
Donald was forced by the restraining order to live apart from the minor and Mother at the
time of the presumed parent hearing, he was married to Mother and reaffirmed his
commitment to return to her and the minor on a permanent basis. These facts provide
substantial evidence to support both the established parental relationship and the
commitment required under section 7611, subdivision (d).
Michael contends Donald failed to provide evidence he satisfies the statutory
requirement to “openly hold[] out the child as his or her natural child” (§ 7611, subd. (d))
because he has not claimed biological parentage of the minor and admitted in a
declaration that he, Mother, and the minor “all acknowledge that [the minor] has a
different biological father.” Still, compliance with this portion of the subdivision does
not require proof that the presumed parent claims the child as his or her biological child.
As noted, a presumed parent need not be a biological parent (In re Jesusa V., supra,
32 Cal. 4th 588, 607–608), and subdivision (d) of section 7611 does not require a
presumed parent who is not a biological parent to pretend otherwise. (In re Nicholas H.
(2002) 28 Cal. 4th 56, 63 [“a man does not lose his status as a presumed father by
admitting he is not the biological father”].) What is required, rather, is that the presumed
parent treat the child as though the child was his or her own by developing a parental
relationship and taking on “ ‘ “ ‘parental responsibilities—emotional, financial, and
otherwise.’ ” ’ ” (In re Jovanni B. (2013) 221 Cal. App. 4th 1482, 1488.)
Michael relies in part on In re Spencer W. (1996) 48 Cal. App. 4th 1647
(Spencer W.), but we find that case supportive of our conclusion. In Spencer W., the man
seeking presumed parent status, who knew he was not the child’s biological parent, was
present at the birth, lived with the mother at her home, and was financially supported by
the mother after the child’s birth. (Id. at p. 1650.) During this time, he cared for the child
and claimed parentage to friends, neighbors, and relatives. When the mother was
20
incarcerated two years later, however, he left the child with a friend of the mother and,
for the next several months, neither saw the child nor provided any financial support. (Id.
at p. 1651.) Soon after, the father was incarcerated and, when he learned of the
dependency proceedings, made no attempt to intervene for nearly a year. (Id. at
pp. 1651–1652.) The court affirmed the juvenile court’s denial of presumed parent
status, concluding the man did not openly hold out the child as his own because, although
he told others he was the child’s father, he was “unwilling to proclaim paternity when
there might have been some cost to him,” such as reduced governmental payments or the
burden of financial support. (Id. at p. 1654.) In other words, a verbal acknowledgment
of paternity, whether true or false, is of little significance standing alone. A person who
is not a biological parent does not satisfy the “openly holds out” requirement merely
because he or she is willing to claim parentage. What ultimately matters to presumed
parent status is a person’s commitment to the child and the responsibilities of
parenthood.19
In contrast to the claimant in Spencer W., there is no evidence that Donald is
acting out of convenience, without the underlying commitment to the minor expected of a
parent. He is married to the minor’s mother, treats the minor as his child, and claims an
intent to continue to do so. While it is true, as Michael argues, that Donald never
attempted to establish paternity in the family law proceedings filed by Michael and Joel,
the juvenile court was not required to draw any particular inference from his failure.
Since none of the parties were represented by counsel in that proceeding, it is unclear
whether Donald understood his rights and options. Once he was provided counsel in the
context of this proceeding, Donald promptly asserted his claim to paternity. Nor do we
find it determinative that Donald, Mother, and the minor acknowledge Joel’s biological
19
In reaching this conclusion, we do not to mean to suggest that a presumed
parent’s words are necessarily irrelevant. If a potential presumed parent disclaims
biological parentage under circumstances suggesting an intent to avoid the
responsibilities of parenthood, that disclaimer would certainly be relevant to the “openly
holds out” requirement. There is no evidence in the record that Donald’s
acknowledgment of Joel’s biological parentage was intended in this manner.
21
paternity. That has not prevented the minor from referring to Donald as “Daddy.” One
can treat a person as a one’s parent, and be treated as a child in return, while
acknowledging a different biological reality.
Michael also contends Donald failed to satisfy the portion of section 7611,
subdivision (d) requiring a presumed parent to “receive[] the child into his or her home”
because Donald stated in his declaration he “moved in” with Mother and the minor in
July 2013, from which Michael infers the family now lives in a home owned or rented by
Mother. But there is no requirement that a presumed parent prove he or she rents or owns
a residence in order to qualify as a presumed parent. One’s “home” is the place where
one resides. The evidence is clear that Donald has received the minor into his home,
albeit a home that may be owned or rented by Mother.20 Again, Spencer W. is
instructive. In Spencer W., the court concluded the man seeking presumed parent status
was not merely living in the mother’s home, but was also living off her, supported by her
welfare payments. From this, the court found permissible the inference that the potential
presumed parent was caring for the child out of convenience, rather than commitment.
(Spencer W., supra, 48 Cal.App.4th at p. 1654.) There was no similar evidence
submitted with respect to Donald’s residence with Mother.
Finally, Michael contends Donald should be disqualified from presumed parent
status because it was Donald’s commission of domestic violence toward Mother in the
minor’s presence that resulted in the minor’s detention. There is some support in
decisional law for the argument. In T.R., supra, 132 Cal. App. 4th 1202, the person
seeking presumed parent status was the child’s stepfather, who had raised the 10 year old
20
The record is unclear about the financial arrangements of the couple. Donald
owned or rented a home in 2011, but it is not known whether Mother and the minor
moved into that home in July 2013, or whether, as the language of the declaration
suggests, Donald moved into a residence they were already occupying. Further, and
contrary to Donald’s claim that he “provid[ed] food, shelter and clothes for the child for
almost two years,” there is no information in the declaration as to Donald’s contribution
to the family’s finances. While evidence that Donald was helping to support the minor
financially would have been useful in demonstrating his commitment, the absence of
such evidence does not disqualify him.
22
in his home from the time she was three years old. (Id. at pp. 1206, 1211.) The child was
detained on the basis of allegations, found true by the juvenile court, that the stepfather
had molested her. (Id. at pp. 1206–1207, 1211.) In affirming the denial of presumed
parent status, the court explained: “[The stepfather’s] conduct was antithetical to a
parent’s role and was a blatant violation of parental responsibilities. It more than
counterbalanced the factors favoring [the stepfather’s] presumed father status. . . . If an
individual can qualify for presumed father status based on his good deeds consistent with
parental responsibilities, it follows that under certain circumstances he can be disqualified
by repugnant conduct that is detrimental to the child.” (Id. at pp. 1211–1212.) The T.R.
court, however, expressly declined to “establish a bright-line test” that would
automatically disqualify a person from presumed parent status if he or she had
“committed sexual or serious physical abuse on a child leading to the institution of the
dependency proceeding.” (Id. at p. 1210, fn. 5.)
While we do not mean to minimize the significance of Donald’s abuse of Mother,
we do not find it disqualified him as a matter of law from acquiring presumed parent
status. The violence, while committed in the minor’s presence, was not directed at the
minor. As such, we do not find Donald’s conduct so “antithetical to a parent’s role” and
such a “blatant violation of parental responsibilities” that it “counterbalanced the factors
favoring” presumed parent status. (T.R., supra, 132 Cal.App.4th at p. 1211.) Like T.R.,
we decline to adopt a rule that would disqualify a person from presumed parent status
solely because their conduct led to the filing of the dependency proceeding. Donald’s
violent conduct was, instead, one factor the juvenile court could consider in weighing
Donald’s request for presumed parent status. We find no abuse of discretion in the
juvenile court’s conclusion that, under these circumstances, it was not determinative.
Michael urges us to follow In re Kieshia E. (1993) 6 Cal. 4th 68, which held that
“any adult who causes the onset of dependency proceedings by committing sexual or
other serious physical abuse upon a child in his charge” is disqualified from acquiring de
facto parent status in the proceeding. (Id. at p. 78.) T.R. distinguished Kieshia, noting
the stepfather in T.R. sought presumed parent status, rather than de facto parent status.
23
(T.R., supra, 132 Cal.App.4th at p. 1210.) That is, of course, also true here. In addition,
we note the person seeking de facto parent status in Kieshia E., like the stepfather in T.R.,
had sexually molested the child, a three-year-old girl. As discussed above, the violence
committed by Donald was not directed against the minor, and we are therefore unwilling
to find it disqualifying as a matter of law.
2. “Detriment” Under Section 7612
Michael maintains the juvenile court erred in finding the minor would suffer a
detriment if Donald was not designated a presumed father, the finding necessary for the
designation of more than one presumed parent under section 7612, subdivision (c).
As noted above, prior to 2013, the juvenile court was precluded from designating
more than one presumed parent. If two persons qualified, the court was required to
choose between them, based on “considerations of policy and logic.” (§ 7612, subd. (b).)
Now, more than one presumed parent can be designated if to do otherwise “would be
detrimental to the child.” (Id., subd. (c).)
Section 7612, subdivision (c) was recently explored at length in Donovan L.,
supra, 244 Cal. App. 4th 1075, a dependency proceeding in which the detained child was
fathered by another man in the course of a marriage. The husband raised the child as his
own, apparently unaware he was not the biological father, and was eventually granted
custody in the course of several dependency proceedings arising out of the mother’s
substance abuse. Early in the child’s life, the mother had allowed the child to visit with
his biological father, and at the dispositional hearing of the final dependency proceeding
the biological father appeared and asked to be designated a presumed parent. (Id. at
pp. 1079–1080.) The juvenile court declared both the husband and the biological father
to be presumed parents. Although the court found the husband to be a good father and
the biological father to lack a current relationship with the child, it reasoned the child
would suffer a detriment if he was not allowed to develop a relationship with his
biological father. (Id. at pp. 1081–1082.)
In reversing the juvenile court’s order under section 7612, subdivision (c), the
court discussed the legislative history of the amendment at length. “Detriment” was
24
selected as a standard for permitting more than one presumed parent after the Governor
vetoed a bill that would have made the decision dependent on the “ ‘best interest of the
child.’ ” (Donovan L., supra, 244 Cal.App.4th at p. 1089, fn. 12.) The standard was
borrowed from section 3041, which governs the award of custody to a nonparent over the
objection of a parent. Under that section, detriment is found if the nonparent has
achieved a successful, established relationship with the child. (Donovan L., at p. 1089.)
Legislative reports prepared in connection with the amendment to section 7612
emphasized the provision for more than one presumed parent was intended to prevent the
disruption of established emotional bonds between a child and his or her caretakers.
(Donovan L., at pp. 1089–1090.) To that end, an uncodified portion of the amendment
states, “ ‘in rare cases, children have more than two people who are that child’s parent in
every way. . . . [¶] . . . [¶] . . . It is the intent of the Legislature that this bill will only
apply in the rare case where a child truly has more than two parents, and a finding that a
child has more than two parents is necessary to protect the child from the detriment of
being separated from one of his or her parents.’ ” (Id. at p. 1090, italics omitted.) Based
on this reasoning, the Donovan L. court concluded, “ ‘an appropriate action’ for
application of section 7612, subdivision (c) requires a court to find an existing, rather
than potential, relationship between a putative third parent and the child, such that
‘recognizing only two parents would be detrimental to the child.’ ” (Id. at p. 1092.)
Because the juvenile court concluded the biological father did not have a strong
relationship with the child, Donovan L. reversed the finding of detriment from failing to
recognize the biological father as a presumed parent. (Id. at pp. 1092–1093.) A contrary
conclusion, the court reasoned, “would open the floodgates to virtually all biological
fathers” and “call into question the continued viability of section 7612, subdivision (b),”
which requires the juvenile court to select between or among multiple presumed parents
on the basis of policy and logic. (Id. at p. 1093.)
Given this interpretation of the detriment requirement, there was substantial
evidence to support the juvenile court’s conclusion it would be detrimental not to
designate Donald as a presumed parent. As discussed above, the minor has an
25
established, parental relationship with Donald. Preserving such a relationship is precisely
the purpose of the amendment to section 7612 to permit multiple presumed parents.
Michael argues Donald’s domestic violence supports a finding that it would not be
detrimental to deny Donald presumed parent status. While the juvenile court might
permissibly have reached that conclusion, we find no abuse of discretion in the court’s
decision to favor preservation of the minor’s strongest parental relationship,
notwithstanding his domestic violence. Michael also challenges the strength of the
minor’s bond with Donald, pointing out they had lived together for only 20 months.
Twenty months, however, is a significant portion of the minor’s young life. In any event,
the juvenile court’s contrary conclusion is supported by substantial evidence, for the
reasons discussed in connection with Donald’s designation as a presumed parent.
Finally, Michael contends that finding Donald to be a presumed parent
“circumvents the purpose of stepparent adoption statutes.” Being declared a presumed
parent, he argues, permits Donald to “achieve a potentially custodial status” with the
minor without going through the process established by section 9000 et seq. for the
adoption of a child by his or her stepparent. In effect, Michael argues, if a stepparent is
to be designated a presumed parent, that person should be required to adopt the child;
conversely, if a stepparent has not seen fit to adopt, presumed parent status should be
denied. In considering this argument, it must be remembered that adoption and presumed
parent status serve different purposes. Adoption is available generally to stepparents,
while designation of a presumed parent normally occurs in the context of a dependency
proceeding. Given the potentially critical importance of a presumed parent in the life of a
child who is subject to a dependency proceeding, we see no reason to place roadblocks to
the achievement of that status by otherwise qualified persons, including stepparents, by
imposing requirements not found in the Family Code provisions bearing on presumed
parent status. In the absence of an indication by the Legislature that adoption is intended
26
to be the exclusive means by which a stepparent is to be granted custodial status, we find
no basis for denying presumed parent status to otherwise qualified stepparents.21
D. Denial of Visitation to Michael
In both appeals, Michael raises a variety of challenges to the juvenile court’s
refusal to grant him visitation with the minor. When a presumed parent has been
designated in a dependency proceeding, however, other persons are generally not entitled
to an order granting visitation with the child. (In re Elijah V. (2005) 127 Cal. App. 4th
576, 589; In re O. S. (2002) 102 Cal. App. 4th 1402, 1410 [alleged fathers not entitled to
visitation].) Because we have vacated the order finding Michael to be a presumed parent,
he no longer satisfies the prerequisite to an order of visitation—presumed parent status.
The validity of the juvenile court’s ruling denying him visitation is therefore a moot
issue. Even if we concluded the juvenile court erred in its refusal to grant visitation, we
would not be able to direct entry, or even reconsideration, of the order of visitation he
seeks because he no longer qualifies for such an order. (In re Z.F. (2016)
248 Cal. App. 4th 68, 72 [appeal must be dismissed as moot when no effective relief can
be granted].) If Michael gains presumed parent status on remand, he may renew his
request for visitation in the juvenile court.22
While we must dismiss as moot Michael’s challenges to the denial of visitation,
for purposes of guiding the juvenile court on remand we note the court’s rationale for
denying visitation was erroneous. (E.g., Costco Wholesale Corp. v. Superior Court
21
Michael also argues, on the basis of references in legislative history documents,
that the amendment permitting more than one presumed parent was not intended to apply
to stepparents. We decline to infer such an important exception from comments in the
legislative history that are not reflected in the text of the legislation. In any event, those
references merely indicated the authors’ belief that stepparents would rarely qualify for
presumed parent status. They do not indicate an intent to bar otherwise qualifying
stepparents.
22
Michael also challenges in various ways the juvenile court’s failure to
implement the family court’s order of visitation. As discussed above, that order is void
because the family court had no jurisdiction over the issue of visitation when it rendered
the ruling. (A.H. v. Superior Court, supra, 219 Cal. App. 4th 1379, 1388–1389.)
27
(2009) 47 Cal. 4th 725, 733 [“An abuse of discretion is shown when the trial court applies
the wrong legal standard.”].) As we understand the juvenile court’s reasoning, it found
visitation by the minor with Michael would be detrimental because the Agency offered
the opinion of an expert witness to that effect and Michael failed to offer expert
testimony to refute the conclusion, leaving the claim of detriment undisputed. Further,
the juvenile court’s statement that the expert opinion was “the only evidence I have in
regards to the reason for the Agency’s not going forward with visitation for [Michael]”
suggests the court viewed its role as reviewing the Agency’s recommendation, rather than
making an independent finding of detriment.
There is no evidentiary rule that an expert opinion can be refuted only by another
expert opinion. (See, e.g., People v. Taylor (1935) 4 Cal. 2d 495, 497 [expert opinion not
conclusive, even if uncontradicted]; Howard v. Owens Corning (1999) 72 Cal. App. 4th
621, 632 [expert testimony, like any other evidence, may be rejected even if
uncontradicted].) In fact, there was a great deal of evidence to refute the psychologist’s
conclusion, including evidence Michael maintained an apparently successful parental
relationship with the minor during his first year and had successful visits with the minor
during the early stages of the paternity action. Further, there was evidence calling into
question the validity of the psychologist’s opinion, which was based on a relatively brief
conversation with the social workers rather than any examination of the relevant
documents, let alone interviews with the minor or other affected parties. In addition,
because one of the social workers had misunderstood the family court’s order to include a
finding of detriment—precisely the opposite of the family court’s finding of no
detriment—there was reason to doubt the accuracy of the information conveyed to the
psychologist by the Agency, and Michael had no opportunity to cross-examine the
psychologist about the foundation for her opinion because she did not testify. It was
therefore improper for the juvenile court to defer to the psychologist’s conclusion on the
ground that no contrary evidence on the issue of detriment was offered. Further,
“detriment” is a factual issue for determination by the juvenile court, not the Agency.
While the court could, of course, have found the expert’s opinion persuasive, it was
28
required to perform its own evaluation of the evidence before settling on that conclusion,
rather than deferring to the Agency’s recommendation. For these reasons, we vacate the
juvenile court’s finding of detriment to the minor from visitation with Michael and direct
that, should Michael reestablish presumed parent status, the juvenile court conduct a
hearing de novo on visitation.
III. DISPOSITION
The juvenile court’s orders finding Michael to be a presumed parent and denying
him visitation are vacated. The orders finding Joel and Donald to be presumed parents
are affirmed. Following remand, the juvenile court is directed to hear and render a
decision on Michael’s request for presumed parent status. If Michael is designated a
presumed parent, the juvenile court shall also reconsider his request for visitation.
29
_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Dondero, J.
A146040, A146595
In re Alexander P.
30
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Nancy L. Davis
Hon. Newton J. Lam
Counsel:
Carol A. Koenig, under appointment by the Court of Appeal, for Appellant Michael P.
Ross Walker, under appointment by the Court of Appeal, for Defendant and Appellant
Heidi S.
Marin Williamson, under appointment by the Court of Appeal, for Appellant
Alexander P.
Linda Rehm, under appointment by the Court of Appeal, for Appellant Joel D.
Konrad S. Lee, under appointment by the Court of Appeal, for Respondent Donald Q.
Dennis J. Herrera, City Attorney, and Kimiko Burton, Lead Attorney; Gordon-Creed,
Kelley Holl and Sugerman and Jeremy Sugerman, for Plaintiff and Respondent San
Francisco Human Services Agency.
31