MARGULIES, J. —
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 Code
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 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.
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
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 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
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.
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] under
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.
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
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.
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.
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 [171 Cal.Rptr.3d 789].) 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 [182 Cal.Rptr.3d 836], 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 [34 Cal.Rptr.3d 215] (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 [148 Cal.Rptr.3d 349] [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
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
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 [10 Cal.Rptr.3d 205, 85 P.3d 2], 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
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
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.
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 [134 Cal.Rptr.3d 194] [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.
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.)
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 [120 Cal.Rptr.2d 146, 46 P.3d 932] ["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 [165 Cal.Rptr.3d 430].)
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 paternity. That has not prevented the minor
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.
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 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.
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 [23 Cal.Rptr.2d 775, 859 P.2d 1290], 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. (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.
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).)
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 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 to be the exclusive means by which a stepparent is to be granted
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.
Humes, P. J., and Dondero, J., concurred.